[Congressional Record (Bound Edition), Volume 149 (2003), Part 13]
[Senate]
[Pages 17077-17109]
[From the U.S. Government Publishing Office, www.gpo.gov]




         PATIENTS FIRST ACT OF 2003--Motion to Proceed--Resumed

  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. REID. Mr. President, if the Senator will yield just for a brief 
second, it is my understanding the Senator from Arizona has authority 
to speak up to 15 minutes, followed by a 25-minute speech by the 
Senator from California. Is that true?
  The PRESIDING OFFICER. That is correct.
  Mr. REID. I ask unanimous consent that following the statement of the 
Senator from California, Senator Cornyn be recognized for 30 minutes, 
followed by Senator Hollings for 30 minutes, and following Senator 
Hollings, I ask that Senator Voinovich be recognized for up to 30 
minutes, and then he would be followed by a Democrat.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Arizona.
  Mr. KYL. Mr. President, I am pleased to address one of the most 
important issues I think we are going to be talking about all year. I 
hope our colleagues will permit us to conclude our debate with a vote 
so we can actually adopt some legislation to deal with this crisis of 
lawsuit abuse in the United States. Some call it medical malpractice 
reform. Whatever you call it, we have to deal with it.
  Unfortunately, what we have heard is that some of our colleagues are 
going to prevent us from having a vote on the bill that is before us, 
S. 11. It is a bill that addresses one of the most fundamental problems 
we have, and that is access to available quality medical care by a lot 
of people in our society today. We need to reform this flawed medical 
malpractice system which is prohibiting people from getting the quality 
medical care they need and deserve.
  We debated just before the Fourth of July recess Medicare reform to 
provide prescription drug benefits to all of our senior citizens. We 
took a lot of time talking about why our senior citizens needed access 
to care and how we were going to improve that access. But all of that 
will go for naught, it will do no good, if there are no hospitals and 
there are no pharmacists, if there are no physicians and other health 
care providers--or an insufficient number of those providers--to help 
those people in need, whether they be senior citizens or others, 
because of the high cost of malpractice premiums and therefore the 
inability of these providers to continue to serve the people in their 
communities.
  Last year, the American Medical Association released a study on this 
lawsuit abuse problem. It concluded that 12 States were having a full-
blown crisis and that 30 States were seeing serious problems in terms 
of the ability of physicians and hospitals to stay in practice to take 
care of their patients.
  Today, just a year later, that study has been updated and the AMA has 
now concluded that 19 States are having a full-blown crisis in dealing 
with the medical malpractice insurance rates just for physicians. Let 
me give some examples of how this is affecting different communities 
around the country so you can see it is truly a nationwide problem.
  In my State of Arizona, health care providers have experienced 
dramatic increases in their insurance rates. Between 2001 and 2002, two 
hospitals in Phoenix saw a threefold increase in their malpractice 
premiums, paying more than $1.7 million. Meanwhile, in Winslow, AZ, the 
hospital premiums have more than doubled, to $1.8 million.
  Some of you know the town of Winslow, AR, from a famous song by the 
Eagles. It is a town with great history and rich in tradition in 
Arizona but it is not very big. It doesn't have the patient base to 
support a hospital that has to pay almost $2 million a year in medical 
malpractice premiums. It is not just in my State of Arizona. Methodist 
Hospital in south Philadelphia recently closed its maternity ward and 
prenatal program because of its medical liability insurance rates. 
Greenwood Hospital in Mississippi was unable to keep its level II 
trauma center rating because the neurosurgeons in the area had left 
citing the high cost of liability insurance.
  I spoke with a woman whose husband had been very seriously injured in 
an automobile accident in Mississippi. She told the story of how--
because of the lack of physicians and because of the high cost of 
premiums--her husband has suffered so terribly as a result of that 
accident and the inability to get quick medical attention.
  Back to my home State of Arizona, the Copper Queen Community Hospital 
in Bisbee, AZ, was recently forced to close its maternity ward because 
the family practitioners in that community were looking at a 500-
percent premium increase. Expectant mothers now must travel more than 
60 miles to the closest hospital, which is either in Sierra Vista or in 
Tucson. According to the recent news accounts, four women have since 
had to deliver babies en route.
  To cite the news accounts, Time magazine has a June 9 cover story 
about the doctor being out and why so many patients are losing doctors 
to the rising cost of malpractice.
  This is now truly a national event.
  In the Time magazine piece dealing with this question of physicians 
having to leave the practice, there is a particularly interesting story 
about a woman in Arizona whose name is Vanessa Valdez. The title of the 
story is ``Taking the Highway to Have a Baby.'' The story points out 
that Vanessa has to drive about 50 miles to see her OB/GYN and to have 
a baby. She lives in the town of Douglas, which is on the Arizona-
Mexico border. But there is no obstetrician within an hour's drive to 
deliver her child. There were six family practitioners in that 
community but they couldn't afford the soaring malpractice premiums. As

[[Page 17078]]

a result, the hospital was forced to close its delivery room, and 
suddenly rural Cochise County has but one delivery room for the 118,000 
residents. That is in Sierra Vista, 50 miles from Valdez's home of 
Douglas.
  This is beautiful country. It is a great place to live. But it is no 
place to live if you are going to get sick or you know you are going to 
have a baby because you have an hour's drive to get to a doctor. That 
is not right. It is not as if this is out in the middle of nowhere and 
you chose to live there with all of the attendant risks involved. No. 
There are a lot of communities in this area but none of them had 
physicians able to continue to practice because of the medical 
malpractice premiums they had to pay.
  One other example: Nevada was very much in the news last year because 
of the crisis in that State. Nevada's top level trauma center was 
recently closed for 10 days after 58 orthopedic specialists in Las 
Vegas temporarily quit because of the skyrocketing insurance costs. 
Also, a lot of the physicians delivering babies and performing high-
risk surgeries have indicated that they won't be able to continue to 
practice without some kind of relief.
  Ultimately, this destructive lawsuit abuse hurts the patients. Yes. 
The doctors can't make it, so they leave. But ultimately it is the 
patients who are the ones who suffer.
  Therefore, we are trying to deal with that through legislation that 
will make it a little bit more difficult for this kind of lawsuit abuse 
to occur so that the insurance companies won't have to charge quite as 
high a rate, so the physicians and hospitals can stay in business, and 
so the people of the communities can continue to be served.
  Also, the threat of lawsuit abuse often forces doctors to perform a 
lot more in the way of tests and surgeries and other kinds of 
treatments than they otherwise would do simply to protect themselves 
from a claim that they weren't doing enough for the patients--sometimes 
expensive tests, sometimes invasive procedures.
  All of this is called defensive medicine--trying to do everything 
they can to make sure some smart lawyer out there doesn't try to pick 
at what they did and find some kind of fault with it and find a client 
who is willing and able to hire a lawyer to bring a lawsuit against the 
doctor.
  That is another effect of this lawsuit abuse. Another is the fact 
that a lot of times doctors are no longer willing to perform risky 
procedures that may be necessary to really help somebody or even save 
somebody's life. Obviously, the more serious the condition, frequently 
the more risky the procedure. You want to be served by a physician who 
is willing to go to the mat for you in that case. But if the physician 
is looking at a big medical liability suit, if the result doesn't 
happen to work out right, then that physician is going to be less 
likely to try to treat you.
  All of this results in an inferior quality of medical care for 
American citizens, which is wrong. It is not at all uncommon for these 
lawsuits to be brought and the lawyers to get over half the settlement. 
That is wrong. That is one of the issues with which this legislation 
deals.
  The Congressional Budget Office determined that the House bill, which 
passed and which was pretty similar to S. 11, would reduce direct 
Federal spending for Medicare, Medicaid, and other Federal health 
programs by almost $15 billion over the next 10 years. Since the 
Federal Government is a payer for many of the medical services, 
particularly for our seniors who are indigent, it is a saving to the 
Federal Government as well for this lawsuit abuse to be addressed. 
Because employers will pay less for health insurance for their 
employees and more of the employees' compensation will be in the form 
of taxable wages and other fringe benefits, including, of course, money 
that could be plowed back into greater health care for the employees, 
the Congressional Budget Office estimated that enacting this 
legislation would increase Federal revenues by about $3 billion over 
the next 10 years as employees receive higher wages.
  Just a note about the legislation itself, there are a lot of 
different ways you can do this. I had actually cosponsored a bill 
somewhat different than this. But the basic idea is the same, even 
though we might want to change specific provisions of this legislation. 
It basically sets sensible limits on the noneconomic damages that can 
be obtained in these lawsuits. The noneconomic damages are those 
damages that go above and beyond the bills that have to be paid. When 
you get sick and the physician allegedly committed malpractice, you had 
to go to another doctor to get the problem resolved. Those are economic 
damages as you lost wages, and any other expenses that you have. And 
those economic losses are fully compensated. But above and beyond that, 
you are entitled and juries will award substantial damages for 
noneconomic losses, mostly called pain and suffering because of what 
you had to go through. Certainly people recover something for their 
pain and suffering. The question is how much.
  In order to avoid lawsuit abuse, some States--for example, the State 
of California has put a $250,000 limit on those noneconomic damages. 
That is precisely what this legislation does as well. However, states 
with higher caps can keep those under this legislation too. It also 
reserves punitive damages for cases that justify it. Part of lawsuit 
abuse is very large punitive damage awards which have nothing 
whatsoever to do with either the economic or noneconomic losses but 
nevertheless help to enrich the lawyers.
  There are some other features of the legislation as well. But the 
point I wanted to make is whatever the specifics of the legislation, we 
need to act.
  I hope our colleagues will permit us to conclude the debate and have 
a vote on this legislation so we can get together with the House of 
Representatives, which also passed a bill, have a conference committee 
work out any differences, all have a chance to vote on that, and then 
hopefully have a bill we can send to the President.
  If we are never able to have a vote on this, it is not just the 
doctors, hospitals, and other providers that are going to suffer; it is 
the American people because they will not have access to the quality of 
medical care which they need and deserve. I hope we cannot only debate 
this legislation but also permit it to come to a vote so we can address 
this serious crisis in America today.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. FEINSTEIN. Mr. President, I wanted to use 12 minutes of the 
Senate's time to discuss my reaction to this bill and my general 
thinking about the subject of medical malpractice insurance premiums.
  I think it is pretty clear that medicine is at a crossroads. I think 
it is pretty clear that something has to be done. My own State of 
California was at the crossroads 28 years ago. A bill was passed 
through the legislature called the Medical Injury Compensation Reform 
Act, known as MICRA. MICRA had a rough road initially. It had a number 
of court challenges. Finally, it was sustained by the California 
Supreme Court.
  What we saw--I will go into this in more detail later on--was that 
premium costs began to settle down. In fact, I think it is fair to say 
that the California medical profession is very pleased with the MICRA 
bill as it stands today.
  The problem I have--and I am probably one of the few on my side of 
the aisle who is not opposed to the issue of caps because I think in 
this situation they are helpful, but my problem is with the bill that 
is before us today because that bill is nearly identical to the bill 
passed out of the House and, frankly speaking, it is not one that I can 
support.
  This bill before us sets a $250,000 cap for noneconomic damages in 
medical malpractice suits. Now, this can be applied not only to suits 
against doctors but to suits against HMOs, nursing homes, and medical 
product manufacturers. It is a very broad provision. This cap would 
even apply for extraordinary cases. I will give you one: A youngster, 
Jessica Santillan, a 17-year-old who died after doctors mistakenly 
transplanted the wrong kidneys into her body.

[[Page 17079]]

  So under this bill, suits against drug and device manufacturers also, 
such as the makers of the weight loss drug Phen-Fen, the Dalkon shield 
contraceptive device, faulty heart valves, and other products that have 
caused innocent deaths, would be limited to $250,000 in noneconomic 
damages. I find that unacceptable.
  Secondly, this legislation would severely limit the availability of 
punitive damages not only for doctors but also for manufacturers. In 
general, punitive damages are capped at the greater of $250,000 or 
twice economic damages in this bill. But the bill also wipes out any 
punitive damages in several different types of lawsuits against medical 
product manufacturers. It would immunize the manufacturer or seller of 
drugs from punitive damages for any packaging or labeling defect on 
their product. So, presumably, if a drug package label had mistakenly 
directed a patient to take 10 pills a day instead of 1 pill a day, a 
patient could not sue for punitive damages, regardless of the harm 
caused or the basis of the mistaken direction.
  It would also limit the availability of punitive damages against any 
manufacturer or distributor of medical products if the product complied 
with FDA regulations. Let me give you an example: a product such as the 
Bjork-Shiley artificial heart valve. It originally received FDA 
approval, but these valves broke in an estimated 619 patients and led 
to hundreds of deaths. Under this bill, they would be immune from any 
punitive damage case. I think that is wrong.
  This FDA exemption, in a sense, sets a downward and unacceptable 
course. If a company has an FDA-approved product on the market and then 
learns of a dangerous complication presented by that product or a 
failure of that product, it should have the incentive to remove that 
product from the marketplace as soon as possible. I think to provide an 
exemption if the product has FDA approval creates a disincentive to the 
rapid removal of that product from the shelf.
  So while I cannot support this proposal, there are, however, 
proposals which I could support because I do believe that rising 
premiums are creating a crisis all across this country in terms of 
access to care. Others have placed before this body a number of 
situations. Let me just repeat a few.
  Obstetricians and gynecologists in Florida pay over $200,000 a year 
for malpractice insurance as opposed to $57,000 a year in California. 
And there is no more high-cost State than California. So OB/GYN 
premiums in Florida, $200,000; in California, because of MICRA, 
$57,000; surgeons in Michigan pay $110,000 for malpractice insurance. 
Twenty percent of the OBs and GYNs in West Virginia and Georgia have 
been forced out of their practice due to rising premiums.
  Nine hundred doctors in Pennsylvania have left the State since 2001 
to avoid annual premiums as high as $200,000. The Methodist Hospital in 
Philadelphia discontinued its prenatal program for low-income women 
because of high premium costs.
  The neurosurgeons of Wheeling, WV, have left the area, and local 
trauma patients requiring neurosurgery need to be airlifted out of the 
State.
  Not only are insurance premiums skyrocketing in some States, but 
insurers are leaving the market, and that is a very dangerous signal. 
There were 14 companies underwriting liability in Mississippi; today, 
there is but one willing to write new policies. Texas had 17 insurance 
carriers; today it has 4.
  In California, we have nonprofits handling the insurance for 
California's doctors, and that is one reason the system works.
  I have spent a number of months taking a good look at the California 
law to see what could be transferred to the national level. And I want 
to say, here and now, this Senator would support reasonable caps on 
noneconomic damages because I deeply believe they can lead to more 
stable premium rates.
  At the time MICRA was enacted in 1975, the cost of health insurance 
in California was higher than any other market except New York City. In 
the 6 years before 1975, the number of malpractice suits filed per 100 
physicians in California more than doubled.
  MICRA has kept costs down. In 1975, California's doctors paid 20 
percent of the gross costs of all malpractice insurance premiums in the 
country. Today, they pay 11 percent of the Nation's total malpractice 
insurance premiums. Clearly, costs have dropped in comparison with 
other States.
  All over the United States, premiums have grown 505 percent in the 
past 25 years. California's premiums have grown 167 percent. In other 
words, premiums have grown three times slower in California than in 
other States. That alone shows that MICRA is working, regardless of 
what anyone might say.
  Also, because of MICRA, patients get their money 23 percent faster 
than in States without caps on noneconomic damages. Bottom line: 
California's malpractice premiums today are one-third to one-half 
lower, on average, than those in Florida or New York.
  Because the California law has proven successful at keeping premiums 
down--and I know there are those who do not want to believe it; they 
will say it is some other reason; but I believe it has--I used the law 
as a departure point for crafting a proposal which I believe is both 
just and fair and which I believe should stabilize and, over time, 
reduce premium costs.
  I very much appreciate the efforts of Senator Frist and Senator 
McConnell in working with me to explore this option. I am not going to 
offer it on the floor today for one reason: Unfortunately, it would not 
have the necessary votes.
  Specifically, my proposal would do the following: It would create a 
schedule for attorney's fees. It would create a strict statute of 
limitations, requiring that medical negligence claims be brought within 
1 year from the discovery of an injury or within 3 years of the 
injury's occurrence. It would require a claimant to give a defendant 90 
days' notice of his or her intent to file a lawsuit before a claim 
could actually be filed. It would allow defendants to pay damage awards 
in periodic installments. It would allow defendants to introduce 
evidence at trial to show that claimants have already been compensated 
for their injuries through workers compensation benefits, disability 
benefits, health insurance, or other payments--that is only fair--and 
it would permit the recovery of unlimited economic damages.
  My proposal would differ from California's law in two key areas: One, 
noneconomic damages and, two, punitive damages. The California MICRA 
law has a $250,000 cap on noneconomic damages. In contrast, I would 
propose a $500,000 general cap on noneconomic damages. Today 15 States 
have caps of $500,000 or less for noneconomic damages. Twelve States 
have a cap of $500,000 or less on noneconomic damages, and that 
includes Alaska, Florida, Louisiana, Massachusetts, Michigan, 
Mississippi, Nevada, Oregon, Texas, Hawaii, North Dakota, and South 
Dakota. Three States have caps of $250,000-or-less and they include 
Montana, New Hampshire, and California. Thus, 15 States already have 
caps of $500,000 or lower.
  In catastrophic cases, where a victim of malpractice was subject to 
severe disfigurement, severe disability, or death--in other words, a 
catastrophic exemption--the cap would be the greater of $2 million or 
50,000 times the number of years of the life expectancy of the victim. 
This really takes into consideration terrible morbidity done to a young 
child whose life span might be 50 or 60 years more. Clearly, a cap of 
$250,000 or $500,000 is really not fair to that youngster. Therefore, 
the catastrophic exemption we would propose would provide the greater 
of $2 million or 50,000 times the number of years of life expectancy of 
the victim.
  In addition, we would propose a less onerous punitive damages 
standard than California law. California law is very strict today with 
respect to a plaintiff's ability to prove punitives under the very high 
standard of fraud, oppression, or malice. In other words, if you can't 
prove fraud, oppression, or malice, you can't prove punitive damages. 
If a doctor is in the middle of surgery and walks out to go to his bank 
to make a deposit while the patient is

[[Page 17080]]

under a general anesthetic, in my view, that doctor should have 
punitive damages brought against him because that clearly is not 
accepted medical procedure.
  California's law is much stricter. You have to prove fraud, 
oppression, or malice. Under this law, I am not aware of a single case 
where a plaintiff has obtained punitive damages in California over the 
past 10 years. So at least in my view, for situations such as the one I 
just indicated, the California law is too strict in this regard.
  Instead we would offer a four-part test where a plaintiff would have 
to show by clear and convincing evidence--and this was put together 
based on measures that have passed this Senate in the not too distant 
past--that the defendant, one, intended to injure the claimant 
unrelated to the provision of health care; or two, understood that the 
claimant was substantially certain to suffer unnecessary injury and, in 
providing or failing to provide health care services, the defendant 
deliberately failed to avoid such injury; three, the defendant acted 
with a conscious flagrant disregard of a substantial and unjustifiable 
risk of unnecessary injury which the defendant failed to avoid; or 
four, the defendant acted with a conscious flagrant disregard of 
acceptable medical practice in such circumstances.
  Clearly, the doctor who walked out of a surgery and left a patient 
under a general anesthetic would fall under this fourth plank. It 
certainly is a flagrant disregard of acceptable medical practice which 
would be, you don't go to your bank in the middle of an operation to 
make a deposit when the patient is under a general anesthetic.
  I firmly believe a variant of this type could lead to a compromise in 
the proposal in the Senate. Why didn't I go ahead with it? Much to my 
chagrin and, I think, surprise, both the American Medical Association 
and the California Medical Association rejected this proposal. The AMA 
contends that despite the fact 15 States have caps of $500,000 or less, 
they believe that a $500,000 cap is too high and it would not stabilize 
premiums.
  The California Medical Association is opposed to it for a different 
reason. Although we leave State law in place, whether that State law is 
retroactively passed or prospectively passed, the CMA felt the State 
legislature might--I say ``might''--change the $250,000 cap to 
$500,000. So both of these associations have rejected that proposal 
which meant I wouldn't have a chance to get the necessary votes on 
either my side of the aisle or pick up a few votes on the other side of 
the aisle.
  They refused to move from a cap of $250,000 for noneconomic damages 
in even catastrophic cases. To me this is wrong because a $250,000 cap 
in 1975, when the California law set this cap, adjusted for inflation 
was worth $839,000 in 2002. So last year a $250,000 cap, passed in 
1975, would be worth $839,000, if passed today. If a figure of $250,000 
was adequate in 1975, why couldn't a figure of $500,000, which is lower 
than the 1975 cap adjusted for inflation, be acceptable this year?
  Now if a victim receives $250,000 today, this is equal to $40,000 in 
1975. So when California led the Nation by passing the Medical Injury 
Compensation Reform Act and setting a cap for noneconomic damages of 
$250,000 in 1975, everybody should know that that is worth $40,000 
today. In my book, that is unacceptable.
  There are many specific instances of why it is unacceptable. Let me 
share one case. That is Linda McDougal. She is 46. She is a Navy 
veteran. She is an accountant, a mother. She was diagnosed with an 
aggressive form of cancer and underwent a double mastectomy. Two days 
later she was told that a mistake was made. She didn't have cancer and 
the amputation of both her breasts was not necessary.
  A pathologist had mistakenly switched her test results with another 
woman who had cancer. Is this Congress willing to say there should be a 
cap of $250,000 on noneconomic damages for this kind of mistake? I 
think not.
  A cap on noneconomic damages must take into account severe morbidity 
produced by a physician's mistake, such as amputating the wrong limb or 
transfusing a patient with the wrong type of blood.
  Unfortunately, because of the opposition of both the American Medical 
Association and the California Medical Association, I am not proposing 
an amendment at this time. My purpose was to help physicians and 
patients, and I deeply believe that a $500,000 noneconomic damage cap, 
coupled with the catastrophic exception I outlined, would accomplish 
this, would accomplish it fairly, and would stabilize premiums over the 
long term.
  I also suggest that State laws, where they exist, should prevail. So 
the California MICRA law, or any other State law, would prevail 
regardless of whether that State law was already enacted or 
retroactive.
  So, bottom line, I could not get 60 votes for this proposal with the 
opposition of physicians. So the result may well be an alternative 
because I don't believe the House bill can pass in the Senate in its 
present form.
  Let me say this. I have given this bill a great deal of thought. I 
really mean what I say--that I am prepared to support a reform bill. I 
am prepared to support a cap on noneconomic damages. But it has to be a 
cap that is realistic in view of today's time. It cannot be a cap that 
was passed 28 years ago that has an actual value of $40,000 today. So I 
am hopeful there will be another time and another place when a bill 
such as the one I have tried to outline might be found to be 
acceptable. In the interim, I will vote against S. 11. But, again, I 
stand ready to participate in a solution along the lines I have 
mentioned.
  Mr. President, I yield the floor and 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. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Crapo). Without objection, it is so 
ordered.
  Mr. CORNYN. Mr. President, I wish to say a few words about the issue 
of medical liability reform, a matter that cries out for a remedy from 
the Congress because of its sheer scope and size.
  When it comes to health care, I believe the proper role of the 
Government is to protect the freedom of all people to act in their own 
interests and in the interests of their health. I think it is 
appropriate that we make sure their decisions are not made by the 
Government but by themselves and their families. Patients and doctors, 
rather than lawyers and bureaucrats, should be trusted to decide what 
treatment is best for themselves and their patients.
  I strongly believe that when people have good choices in a health 
care system built upon free market principles, it ultimately translates 
into high-quality care. One of the obstacles, though, to achieving 
access to that high-quality care is the current crisis involving 
medical liability litigation.
  Today, America is experiencing a medical liability litigation crisis 
that is increasing the cost of health care, it is decreasing access to 
physicians and hospitals for many patients, and it is generally 
lowering the quality of care. As a matter of fact, we could hardly call 
our medical liability system a ``system'' because it is such a mess. In 
recent years, average jury awards have more than doubled, from more 
than $460,000 in 1996 to more than $1 million in the year 2000.
  In the past year, medical liability insurance premiums in many States 
have increased by more than 20 percent, on average, and more than 75 
percent for certain specialties. That is just in 1 year. Between 1991 
and 2001, the number of medical malpractice payments of $1 million or 
more that were reported to the National Practitioners' Database 
increased from 298 to 806. The overall result is sky-high costs for 
liability insurance, increased costs for those who provide health 
treatment, and costs that have really created a crisis of enormous 
proportions, one that is threatening the quality of care, diminishing 
access to care, and exploding the cost of care.

[[Page 17081]]

  According to studies at the Department of Health and Human Services, 
doctors across the country are closing their practices, they are 
limiting the types of patients they see, or they are leaving 
communities where they have long practiced because they cannot afford 
the rapidly increasing costs of medical liability insurance or, worse 
yet, insurance coverage is unavailable altogether.
  Fear of liability suits--even frivolous litigation--also results in 
the practice of defensive medicine.
  A recent survey, for example, conducted by an organization known as 
Common Good, revealed some disturbing trends: 79 percent of physicians 
admit that the fear of litigation has caused them to order more tests 
than they thought medically necessary, and 74 percent refer more 
patients to specialists than their best medical judgment would 
otherwise dictate. Half have recommended invasive procedures they do 
not consider on a medical basis to be necessary, but they have done it 
in an effort to protect themselves against the second-guessing that 
goes along with the medical liability regime.
  Defensive medicine increases risks for patients and it raises health 
care costs by as much as $126 billion per year. This is a crisis not 
just for the Nation's physicians, it is a danger to America's 
patients--in other words, every single one of us.
  For example, pregnant women in Nevada, Mississippi, West Virginia, 
and Florida must drive hours just to find an obstetrician who can care 
for them, and many still cannot get the essential prenatal care they 
desperately need. The only level 1 trauma center in Las Vegas had to 
close temporarily last year because its surgeons could not afford 
medical liability insurance. Some physicians' annual premiums had 
increased from $40,000 to $200,000 in just a year.
  In many States, physicians are retiring or moving their practices 
because they either cannot afford the liability insurance or simply 
cannot buy the liability insurance they need in order to protect what 
they have worked a lifetime to achieve.
  In Mississippi, physicians are actually moving across the river to 
Louisiana to serve the same patients they would serve in Mississippi 
because they can no longer afford to practice in that State, and most 
cities in the State of Mississippi with populations under 20,000 no 
longer have any physician who will even deliver a baby.
  There are many more examples from my State, the State of Texas. The 
city of Austin, for example, is suffering from a shortage of 
neurosurgeons caused by retirements and relocation to avoid liability 
coverage costs, a shortage so heavy that some patients have to travel 
more than 65 miles away to find treatment.
  In 100 of the 254 counties in the State of Texas, there is no 
obstetrician; in other words, there is no medically trained specialist 
who will deliver a baby in 152 Texas counties. After 44 years, Spring 
Branch Medical Center near Houston has stopped delivering babies 
altogether due to the soaring malpractice insurance costs and the 
shrinking pool of physicians that will actually deliver babies.
  According to the Texas Medical Association's physician survey last 
year, more than half of all Texas physicians, including those in the 
prime of their professional career, are considering early retirement 
because of the State's medical liability insurance crisis, and earlier 
this year the Fort Worth Star-Telegram reported about one story that 
illustrates the way this problem affects patients who need care the 
most. The story said:

       Last summer, a pregnant woman showed up at Dr. Lloyd Van 
     Winkle's Castroville office in south Texas, less than 10 
     minutes from delivery. Her family doctor in Uvalde had 
     recently stopped delivering babies, citing malpractice 
     concerns, and the woman was trying to drive 80 miles to her 
     San Antonio doctor and hospital. ``She made it as far as 
     Castroville and decided she wasn't going to make it any 
     further,'' Van Winkle said.

  We all want to prevent disease and injury. When patients get sick, we 
all want to prevent medical errors, and when errors do happen, we can 
all agree that a patient should be compensated fairly. But if you can 
find some goal hidden somewhere within the current dysfunctional 
medical liability system, that goal would not be either the prevention 
of errors or the fair compensation for injury. Very clearly, the 
current medical liability crisis operates for the benefit of a few at 
the expense of the many.
  Personal injury trial lawyers should not be able to drive good 
doctors out of medicine or to reduce patients' access to health care. 
This system undermines the ability of physicians to treat their 
patients without fear, and it destroys the trust and the important 
relationship between patients and their physicians, and it truly 
abandons the American patient--that is, every one of us--when we need 
the help the most.
  I am proud to say that in my home State of Texas, the State 
government has stepped up in the legislative session just ended and 
passed some needed reforms in this and other areas. This year, despite 
overwhelming pressures from special interest groups, the State passed 
historic liability reform which makes it possible for doctors to 
practice in Texas without fear of unwarranted and frivolous lawsuits. 
The law puts caps on punitive damages while allowing for patients who 
are truly hurt to be fairly compensated. Judgments will be based on the 
amount of involvement in the act caused in the suit without 
consideration of who has the deepest pocket.
  I must add, though, that even in my State of Texas, there will be a 
vote of the people on whether the Texas Constitution will be amended to 
provide a means to achieve this historic reform and much needed reform, 
and that vote remains to be given and taken. Yet there is still little 
recourse for patients in States without meaningful reform, and this is 
truly a nationwide crisis and not one that should be addressed by 
individual States, given the sheer magnitude of the crisis, its 
geographic expanse and, frankly, the amount of Federal taxpayers' 
dollars to go in to paying for the current dysfunctional system.
  Our health care system is still burdened with frivolous lawsuits and 
outrageous jury awards. According to a Health and Human Services study, 
premiums in States without meaningful liability reform went up 39 
percent in the year 2001 and an additional 51 percent in 2002. An out-
of-control system in one State can have an effect on malpractice 
premiums in other States, even those States that have made some 
incremental step toward reform.
  This is a national problem, and it demands a national solution. This 
legislation is comprehensive reform that will enact several critically 
needed components. For example, it caps noneconomic damages awarded in 
medical malpractice cases at $250,000. It will eliminate joint and 
several liability; in other words, the person at fault will pay for 
their percentage or their share of fault and no more. It will create a 
uniform statute of limitations; in other words, a period of time in 
which a lawsuit can be filed and pursued in court in a way that will 
preserve both the rights of the patient, as well as make sure that so 
much time does not pass that memories dim, records are destroyed, and 
the facts are difficult to discern.
  It will reform the collateral source rule, another arcane rule of our 
legal system that says that even if someone has already been paid from 
one source they can still keep that information from the jury and seek 
to be paid yet again for the same loss.
  Finally, it will create reasonable limits and court approval of 
attorney contingency fee awards. In many places, the amount of money 
that a lawyer will receive, and others will receive, in terms of costs 
of expert witnesses and the like routinely exceeds the amount of money 
that an injured patient will receive, somewhere on the order of out of 
every dollar that is awarded by a jury the injured patient only gets 40 
cents. It is the lawyer and the bureaucracy in our litigation system 
that absorb the rest.
  If this were truly about what is best for the patients, we would see 
reform. We would see it in the Senate. Unfortunately, this is about the 
60 cents on the dollar that goes to people, other than

[[Page 17082]]

the patient, who are obstructing true reform.
  This legislation is a comprehensive reform and is modeled after the 
highly successful MICRA law in California, one that has been very 
successful both in making sure injured patients are fairly compensated 
while at the same time holding down the escalating costs of medical 
liability insurance in a way that allows most physicians to practice 
their chosen profession and which provides better access to good 
quality health care.
  This act will help protect our critical care hospitals and provide 
needed relief for nursing homes and medical specialists. The cost of 
health care will be reduced as the need for high premiums for liability 
insurance will become a thing of the past.
  We must remember that this crisis is not, in the end, about what is 
best for doctors, hospitals, insurance companies, or personal injury 
trial lawyers. What this bill is about is what is best for patients--in 
other words, what is best for the American people.
  This crisis is threatening the quality of care, jeopardizing access 
to care, and escalating the costs of care. In my own State, one can 
travel to the gulf coast and Corpus Christi where emergency room 
physicians live in fear that they will be called to answer to a patient 
in a hospital emergency room, someone who they know they have never 
seen before and will never perhaps see again after treating them in the 
emergency room, and for a patient visit that they will likely not get 
paid or will get paid only pennies on a dollar for their usual fee, but 
yet because of the medical liability crisis they will put at risk 
everything they have worked a lifetime to build and achieve for 
themselves and for their family. That is even when they can buy 
insurance.
  The truth is, the costs of medical liability insurance have escalated 
so dramatically because of this crisis that many physicians cannot even 
buy adequate amounts of coverage. If they can, it is at such a cost 
that they figure why bother, why bother to practice, and so they simply 
leave.
  I reiterate that in the end this is not about doctors, lawyers, 
hospitals, or insurance companies. This is about who gets access to 
quality health care, and in many parts of my State, and in many States 
across the Nation, access to health care is simply not there because of 
this crisis.
  I believe we should end the liability lottery, where select patients 
and some trial lawyers receive astronomical awards, while others pay 
more--all of us really--for health care and many suffer access problems 
because of it. We should pass meaningful medical liability reform that 
includes real and lasting change and bring the lessons of Texas and 
other States that have done so to the Nation's Capital and the American 
people.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
South Carolina is recognized.
  Mr. HOLLINGS. I thank the distinguished Presiding Officer.
  My most respected colleague from Texas said it is not about doctors 
and it is not about insurance companies. I would have to dissent from 
that view from the standpoint of my experience over some 30 years 
dealing with this particular problem.
  We started in the early 1970s with my good friend Victor Schwartz. 
Product liability was the style of the day, the crisis. The Little 
Leaguers could not play anymore at the playgrounds. Football was going 
to have to be abolished because they could not buy safe helmets. They 
were all being sued because of the helmets. We faced down the situation 
of so-called product liability and tort reform with the help of the 
National Legislative Association, the National Governors Association, 
and some others.
  We went to Y2K. We would go to terrorism insurance. I resisted, being 
an old States righter. I have an unusually good insurance commissioner 
in South Carolina. In fact, we have low rates as a result of his 
administration. But from a studied view of this particular situation, 
the problem is, yes, the doctors and, yes, the insurance companies.
  Why do I say that? Well, according to the Secretary of Health and 
Human Services, Mr. Thompson, there are 100,000 deaths a year in 
America as a result of medical malpractice. That is people killed. That 
is casualties. We had 58,000 people killed over 10 years, just about, 
in Vietnam.
  Now, the doctors have to get ahold of themselves in the State of West 
Virginia, for example. There are some 40 doctors, I think it is, who 
account for some 25 percent, one-fourth, of the 2,300 malpractice 
claims.
  Incidentally, they are moving down to South Carolina because I have 
talked to some of my doctor friends. There is no better friend of 
medicine than this Senator from South Carolina. I have worked with them 
closely over the many years I have been in the National Government, and 
as their Governor. We have a very disciplined, one might call it, 
medical practice in South Carolina. In fact, they have always told me, 
and again recently affirmed, that if we had the average licensed 
doctors of some of the other States we would immediately add 1,000 
doctors. In other words, it is not easy to practice medicine in the 
State of South Carolina.
  So we go immediately to the doctors disciplining themselves like the 
lawyers, and I can get example after example of us at the bar 
association disciplining the lawyers. Unfortunately, the doctors just 
recently returned now to that particular practice and they are 
beginning to see that they are having to pay for the whole thing. 
Otherwise, it is not tort reform; it is insurance reform.
  The distinguished Senator from Texas mentioned California. I have 
heard, and it is true, that California has brought down the malpractice 
insurance rates for the doctors there. That was done with caps in the 
beginning, but it did not work--in 1975. And it wasn't until 1988 that 
they had Proposition 103, to institute insurance reform--not tort 
reform but insurance reform, where they had an immediate rollback of 
the rates of some 25 percent, regulation written by the insurance 
commission, and anyone who wanted to question any rate increase had a 
right before the commission to petition and be heard.
  So, yes, there is a way to do it. But you will see, as I speak here 
this afternoon, it is not this tort reform. In fact, tort reform is 
being taken care of in the States. They are moving fast. They are 
already moving in the State of Illinois, as the distinguished Senator 
Durbin has been pointing out, with respect to that, and other States 
have not waited.
  The only trouble with the cap is that it has not brought down the 
rates. The cap States--I mentioned Illinois that has no cap. The rates 
are up there. But four of the first five--Florida, Michigan, Texas, 
West Virginia--these four of the five top States with the highest 
premiums have caps on damages.
  So the proof of the pudding is in the eating. We have experienced 
this with caps. I have other examples to show. Time and again, the 
insurance executives say: Pass the caps, we are not going to lower the 
rates.
  But the majority leader, the distinguished Senator from Tennessee, is 
one of the most eminent physicians. And I don't say that just speaking 
on the floor in a right fashion. He saved the life of a good friend of 
mine with a lung transplant back in Tennessee. She has been getting 
along extremely well as a result of the expertise, the touch, the 
sensitivity, the bedside manner of Dr. Frist. So there is no question 
in this body that we have a very valued doctor friend as a Senator from 
Tennessee.
  But Tennessee doesn't have that problem. Of course, there are no caps 
there. They are below the median in premiums, and they do not have 
damage caps. I am sure the distinguished doctor/Senator would long 
since have asked that his State move in that direction if that were the 
problem.
  No, the problem is a political one. We have the doctors in town. It 
is almost like the computer crowd who came to town with Y2K, and the 
sky was going to fall--we had to immediately pass Y2K to make sure at 
the first of the century the world wouldn't end.
  We have a similar situation now where we look for the needs of the 
campaign rather than the needs of the

[[Page 17083]]

country. We call this bill, right in the middle of the energy bill, 
appropriations bill, and all the other important matters that we have, 
tort reform, medical malpractice, because the doctors are in town.
  I guess instead of $2,000, those doctors could give $4,000 to 
political campaigns, so you might call this the $4,000 bill we will be 
voting on tomorrow morning, as to whether or not we should have 
cloture. I hope we do have cloture because we ought to nail this 
buzzard quickly and get rid of it.
  You never hear anybody who has been represented as a result of 
medical malpractice complain about the fee. It is always the loser who 
complains about a plaintiff's fee. I never have found a plaintiff yet 
who complained about lawyers' fees.
  That gets me right into lawyers because that is the pollster cancer 
we have in Government in Washington today. You get the pollsters--and 
they don't know. I never have found a pollster, incidentally, who ever 
served in government or public office. So they do not know the 
questions to ask, What about lawyers? Shouldn't we have tort reform? Of 
course, the Chamber of Commerce has us behaving like toadies for 
corporate America, doing everything they want because we want their 
money in order to run for office. So we only pay attention to the money 
needs and the campaign needs and not the needs of the country.
  As far as tort reform is concerned, it is being taken care of at the 
State level. The big problem, of course, is the losses that have been, 
not from medical malpractice, incidentally, but from their investments.
  Let's say a word about those lawyers because, after all, we just had 
the Fourth of July. I saw a program about the forefathers. They were 
all mentioning the different ones who brought us this 227 years of 
freedom.

       Is life so dear or peace so sweet as to be bought at the 
     price of chains of liberty and freedom? I know not what 
     course others may take, but as for me, give me liberty or 
     give me death.

  A lawyer said that.
  I can see that 34-year-old Jefferson, with the quill in hand:

       We hold these truths to be self-evident, that all men are 
     created equal.

  Equal justice under law, with the Declaration of Independence.
  What is government itself, but the greatest of all reflections on 
human nature? If men were angels, no government would be necessary. If 
angels were to govern men, neither external nor internal controls on 
government would be necessary. In framing a government which is to be 
administered by men over men, the great difficulty lies in this: You 
must first enable the government to control the governed; and in the 
next place oblige it to control itself.
  We are out of control: We have a $428 billion budget deficit, after 
talking about the surplus, surplus, and surpluses for 2 years. The 
public debt to the penny is $428 billion, and we have not finished the 
fiscal year.
  Madison, the lawyer, the Emancipation Proclamation--Abraham Lincoln, 
the lawyer.

       The only thing we have to fear is fear itself.

  Franklin Delano Roosevelt, the lawyer.
  You go right on down the line, giving meaning to equal justice under 
law.
  Thurgood Marshall, the lawyer.
  These were eminent lawyers and not jury fixers. We have 60,000 
lawyers working on K Street. I am one of the 60,000 licensed to 
practice in the District of Columbia. There are 60,000, and 59,000 will 
never see the courtroom of law. They are supposed to fix the 535 of us 
lawmakers here in Government. They are salesmen. I delight in seeing 
them. They are a big help because we have to have the proceedings, and 
I listen to both sides and I make up my mind.
  But they are, under the bill at hand that has been introduced, not 
limited in their fees. They sit there claiming frivolity. If you are a 
trial lawyer, you get the client who comes in. You have to perhaps get 
the doctor for him, get the medicine. Then if you get the case, get out 
on the highway, get some pictures and everything else like that, get 
the experts, draw up the pleadings. After the pleadings are drawn, make 
all the motions, the interrogatories, and discoveries. Still you 
haven't gotten a red cent. Time passes on, and what happens is you get 
to the trial and, after all the trial and the motions in the trial, you 
have to win all 12 jurors. And after the 12, you have to make the 
motions on appeal, you have to print up the briefs, you have to go and 
make the arguments before the appellate court. Then, if you finally 
win--if you finally win, yes, you get a good fee. But you probably 
spent a couple of years or more waiting around. And that is the 
practice of the trial bar.
  I have been in it. I have also defended. And they are lazy. Man, they 
are lazy. I have seen them. They just absolutely sit there and let the 
runners and investigators do all the work, call that doctor and do this 
and do that, and then if it is inconvenient, they say: We have a 
witness who is sick, and we will move for a continuance--because, why? 
The clock runs. The clock runs, and they get, what, $450 an hour?
  I remember when I passed the first textile bill here, a Senator on 
the other side of the aisle came and said: I know a lawyer downtown who 
has been paid $1 million to get that bill passed, and he didn't do 
anything. Here you are, a freshman Senator, and you passed it.
  I said: Yes, and I passed it for free because I believe in it.
  But you have big fees down here. The clock runs with this corporate 
crowd, just look at the bill. They say: Oh, no, no--they have no 
control over their fees. Just control the trial lawyers--with tort 
reform. You have the biggest myth on the courts we have ever 
experienced.
  Let's go, since my time is limited, to the truth about malpractice 
premiums. According to the National Association of Insurance 
Commissioners:

       Total profits as a percentage of premiums for 1999 [that is 
     the most recent year for which data is available] are nearly 
     twice as high in the medical malpractice line than the 
     casualty and property insurance industry coverage. Recent 
     price increases are merely an attempt by the insurance 
     industry to maintain the extremely high level of 
     profitability for malpractice coverage.

  If that is all the profits, where are the losses? This is Enron. This 
is Kenny Boy. The Justice Department spent 2\1/2\ years and they can't 
get him. They have gotten everybody in the world. They have gotten 
WorldCom all the way through the courts up to the SEC and reaffirmed 
their bankruptcy plan, but you haven't heard any more about Kenny Boy.
  Listen to what this says:

       When terrorists slammed airplanes into the World Trade 
     Center in 2001, the Donaldson Co. in Bloomington felt the 
     blow almost immediately. The manufacturer's property 
     insurance renewed just days later, with nasty surprises.
       Our premium quadrupled from $500,000 to $2 million.

  I ask unanimous consent to have this article from the Metro edition 
of the Star Tribune in Minneapolis printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Star Tribune, Mar. 9, 2003]

 Few Spared as Insurance Rates Soar; Corporate, Household Budgets Feel 
                               Same Pain

                            (By Dee DePass)

       When terrorists slammed airplanes into the World Trade 
     Center in 2001, the Donaldson Co. in Bloomington felt the 
     blow almost immediately. The manufacturer's property 
     insurance renewed just days later, with nasty surprises.
       ``Our premium quadrupled from $500,000 to $2 million'' and 
     suddenly excluded $150 million worth of terrorism coverage, 
     said Marty Kohne, Donaldson's safety, environment and 
     insurance manager.
       After Enron imploded, Donaldson's cost to insure its 
     directors and officers tripled to $300,000 a year.
       ``You get very frustrated because all these events affect 
     you, but you have no control,'' Kohne said.
       It's a common sentiment among insurance buyers of every 
     kind, both corporate and consumer. Pushed by events as 
     divergent as Enron's collapse, terrorism, natural disasters, 
     and health care inflation, insurance costs are spiraling 
     industrywide unlike anything seen in more than a decade. The 
     insurance inflation is part of what's stifling corporate 
     profits and eating into household budgets, and experts 
     believe it could be at

[[Page 17084]]

     least another two years before prices stabilize.
       Insurance executives contend they've had little choice but 
     to make major adjustments in premiums. Paul Bridges, senior 
     vice president of Marsh USA, the nation's largest insurance 
     broker, explained the increases this way:
       ``We had an insurance industry that used to make all of its 
     money off of investment returns on Wall Street. But with the 
     death of the dot.bombs, those stopped,'' he said. ``Then, 
     with recent losses, margins reversed and [insurers] weren't 
     making money for stock holders.''
       ``We started ratcheting up prices partly on the backs of 
     disasters'' last year, added Bridges, noting that premiums 
     are still on the rise. Commercial policies ``started off 
     rising 30, 40 and 50 percent and some even 100 percent.''


                          There's no escaping

       The burden is being felt at firms of all sizes.
       Minneapolis CPA Barry Rogers runs his own firm with six 
     employees. There have been no major illnesses among his 
     workers, so he was shocked when his agent announced last year 
     that his premiums were ``only going up 12 percent.''
       ``We had one person who had outpatient surgery done, and 
     that was the extent of it,'' Rogers said of the firm's 
     previous claims.
       The firm's health care premiums jumped from $145 per worker 
     to $163, with the co-pay from $15 per office visit to $25.
       Rogers and his agent eventually worked out a plan to reduce 
     the co-payment back to $ deductibles for hospitalization 
     climbed from $300 to $500.
       Statewide, commercial health insurance premiums rose 12 
     percent in 1999, 16 percent in 2001, according to the 
     Minnesota Department of Health. Estimates are that rates will 
     go up again around 12 percent this year.
       Health care companies reported their costs rose 9, 13 and 
     10 percent in 1999, 2000 and 2001, respectively.
       In many cases, the rising health care costs are being 
     partly passed along by employers, effectively canceling out 
     workers' cost-of-living raises. Workers are then finding that 
     their personal insurance costs also take more money. Last 
     year, homeowner premiums rose 10 percent nationwide. This 
     year, homeowners' rates are expected to rise again.
       ``There's no doubt about it, '02 had lots of premium 
     increases,'' said Kenneth Ciak, president of American Express 
     Property Casualty, which collected $260 million in premiums 
     last year.


                           corporate coverage

       ``Frankly, it's about time,'' Ciak said. ``On the personal 
     lines side, we have not had a 9/11 catastrophe, but there are 
     a fair number of storms that have occurred and the 
     homeowners' product has just been underpriced. We have not 
     made money for the last four or five years.''
       While homeowners paid $37 million nationwide to protect 
     their homes against storms, fire and other disasters in 2001, 
     insurers reported losses and expenses equal to 114 percent of 
     all home premiums collected last year.
       Even corporate coverage, which for years was predictably 
     and modestly priced, has exploded in cost, thanks to recent 
     events. The accounting scandals at Enron, WorldCom and other 
     companies have erased an change for reasonable directors and 
     officers insurance or cheaply priced surety bonds.
       The recent $1.4 billion settlement by investment banks with 
     regulators over allegations of misleading stock 
     recommendations also has increased the pricing pressures on 
     such policies, as insurers brace for investor lawsuits 
     alleging biased stock research. Directors and officers 
     insurance protects companies if their executives are sued by 
     shareholders or other plaintiffs.
       A 2001 survey by Tillinghast-Towers Perrin found that 
     insurance claims against executives averaged $5.7 million for 
     each of its 2,037 corporate respondents that year, up 75 
     percent from 2000. Shareholder lawsuits alone leaped 178 
     percent to cost insurers $17 million on average in 2001.


                        paying for enron's sins

       Companies that haven't been sued aren't escaping the 
     fallout.
       Apogee Enterprises of Minneapolis manufactures and installs 
     exterior building glass. The company has 5,500 workers, 12 
     directors and no directors and officer claims in its history. 
     Nevertheless, it is paying or Enron's sins.
       ``Last year we paid about $150,000 [in premiums]. Now we 
     can expect it to go way up, maybe triple . . . even though 
     [four underwriter groups] are very comfortable with Apogee 
     and our governance,'' said Michael Clauer, Apogee's chief 
     financial officer.
       ``That's the reality of Enron. If you want the coverage, 
     you pay the price,'' Clauer added.
       Marcy Korbel, a Marsh vice president of financial 
     professional services, recently shared similar bad news with 
     risk managers from General Mills Inc., 3M Co. and other 
     firms.
       Industrywide, directors and officers ``premiums average 50 
     to 300 percent increases and that's only if there are no 
     claims,'' she said. ``We are seeing increases of more than 
     300 percent if there is claims activity and even more for 
     companies with market caps over $1 billion.''
       Policy prices have to reflect reality, said Bob Hartwig, 
     senior economist for the Insurance Information Institute.
       ``The end of 2001 and all of 2002 were horrific years for 
     this country in terms of corporate governance. We have had 
     some of the worst scandals in the history of this country,'' 
     Hartwig said.


                           premiums going up

       Enron alone hit 11 insurance companies for $350 million in 
     director and officers claims. Enron's bankruptcy also cost 
     the St. Paul Companies $10 million in surety bond losses and 
     $12 million in unsecured debt the insurer held in the energy 
     company. AIG has announced a $1.8 billion charge in part to 
     deal with claims for both Enron and WorldCom.
       All of this was on top of 9/11, which brought insurers $40 
     billion in losses.
       The St. Paul Companies, which lost $941 million in 9/11 
     claims, hoisted commercial premiums 32 percent in 2001, and 
     27 percent last year to squeak back into the black after a 
     dismal 2001. The company lost nearly $1 billion in 2001. It 
     earned $290 million in 2002, about half the $567 million it 
     earned in 2000.
       St. Paul CEO Jay Fishman has said premium increases will 
     continue this year.
       At Apogee, the company's property premiums have risen 40 
     percent, while its general liability premiums doubled. To 
     compensate, it has adopted higher property deductibles and is 
     self-insuring for workers compensation claims.
       ``Not only did we assume more of claims but we also 
     incurred even more costs because premiums keep going up. It's 
     been a very challenging year for us,'' Clauer said.
       On top of that, the company is still waiting for some 
     projects to get going because of the lack of terrorism 
     insurance, a product that is only beginning to be offered 
     again now and is likely to add another cost equal to about 10 
     percent of the property's regular insurance costs.
       ``We still have projects on hold because of the developers' 
     inability to get terrorism insurance,'' Clauer said.


                            surging premiums

       After going through a long period of subdued prices in the 
     `90s, premiums for business and homeowners insurance are 
     rising fast, pushed by a confluence of events including 
     terrorism, corporate crimes and natural disasters. 
     Percentages for 2002 are estimated, percentages for 2003 are 
     forecast.
       Premium percent change from prior year--'90 4.5 percent; 
     '02 14.0 percent; and '03 12.2 percent.

  Mr. HOLLINGS. Mr. President, Enron alone hit 11 insurance companies 
for $350 million in director and officer claims. Enron's bankruptcy 
also cost St. Paul $10 million in surety bond losses and $12 million in 
unsecured debt insurers held in the energy company. AIG has announced a 
$1.8 billion charge in part to deal with claims for both Enron and 
WorldCom.
  All of this was on top of 9/11 which cost insurers $40 billion in 
losses. Now, we find 9/11 and Enron. Kenny Boy is responsible for the 
losses. It is not medical malpractice. In fact, in all of the cases, 
only 1 out of 9, or 12 percent, of the cases actually go to court. Some 
26 percent of that small percentage actually are tried. The verdicts 
are up instead of down. But now we find out from where they come.
  I have another article in the final edition of the Gannett 
Corporation on Friday, January 3, 2003. I ask unanimous consent that it 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     [From USA Today, Jan. 3, 2003]

           J.P. Morgan, Insurance Firms Settle Legal Dispute

                           (By Edward Iwata)

       Hoping to cut loose the Enron albatross, J.P. Morgan Chase 
     early Thursday settled a legal dispute with 11 insurance 
     firms that had accused the Wall Street bank of engaging in 
     sham financial deals with the collapsed energy-trading firm.
       Later in the day, J.P. Morgan Chase said it will take $1.3 
     billion in fourth-quarter charges to cover losses on its 
     dealings with Enron and to create a $900 million reserve for 
     related but unresolved legal claims.
       J.P. Morgan Chase had sued the insurers last year, after 
     the companies refused to cover $1.1 billion in losses on 
     several failed energy trades in the late 1990s involving 
     Enron and Mahonia, an offshore company associated with J.P. 
     Morgan Chase.
       The insurers--plus congressional investigators who have 
     looked into Enron's ties with Wall Street banks--alleged that 
     the deals between Enron and J.P. Morgan Chase were fake 
     accounting transactions designed to hide debt and boost 
     revenue.
       Under the complex settlement submitted in court, the 
     insurance companies could pay

[[Page 17085]]

     from $520 million to $660 million to J.P. Morgan Chase.
       Neither side admitted wrongdoing, and both claimed a legal 
     victory.
       John Callagy, an attorney at Kelley Drye & Warren in New 
     York who represents J.P. Morgan Chase, says the settlement 
     bolsters the bank's contention that the Enron deals were 
     legitimate. ``There was absolutely no evidence of fraud,'' he 
     says.
       Alan Levine, a lawyer at Kronish Lieb Weiner & Hellman in 
     New York and the lead attorney for the insurers, says, 
     ``We're very satisfied with the economics of the 
     settlement.''
       J.P. Morgan Chase's troubles relating to Enron haven't 
     ended, though. The bank still faces the giant Enron 
     bankruptcy case, a shareholders' class-action lawsuit against 
     Enron and several Wall Street banks and federal 
     investigations into the Enron scandal.
       The insurers' settlement should have no legal impact on the 
     other legal fights, says one attorney close to the cases. 
     However, lawyers often use settlements as leverage in talks 
     in related cases.
       In the insurers' case, the settlement came early Thursday 
     morning, near the end of a monthlong trial in New York before 
     U.S. District Judge Jed Rakoff. The jury was ready to start 
     its deliberations Thursday.
       As part of the settlement, Travelers Property Casualty 
     could pay up to $159 million; Chubb's Federal Insurance, $110 
     million; Lumbermens Mutual Casualty, $94 million; Allianz's 
     Fireman's Fund, $93 million; St. Paul Fire & Marine 
     Insurance, $80 million; CNA Financial's Continental Casualty 
     and National Fire Insurance, $47 million; Safeco, $33 
     million; Hartford Financial Services, $25 million; and 
     Liberty Mutual Insurance, $13 million.

  Mr. HOLLINGS. Mr. President, it says:

       Hoping to cut loose the Enron albatross, J.P. Morgan Chase 
     early Thursday settled a legal dispute with 11 insurance 
     firms that had accused the Wall Street bank of engaging in 
     sham financial deals with the collapsed energy-trading firm.
       As part of the settlement, Travelers Property Casualty 
     could pay up to $159 million; Chubb's Federal Insurance, $110 
     million; Lumbermens Mutual Casualty, $94 million; Allianz's 
     Firemen's Fund, $93 million; St. Paul Fire & Marine 
     Insurance, $80 million; CNA Financial's Continental Casualty 
     and National Fire Insurance, $47 million; Safeco, $33 
     million; Hartford Financial Services, $25 million; and 
     Liberty Mutual Insurance, $13 million.

  Let us talk about those losses. Where do we go?
  I quote from an article dated June 30 in U.S. News and World Report.

       The case of Samuel Desiderio, while tragic, seems to give 
     perfect voice to the complaints of many doctors who see a 
     legal system gone wild. As a 4-year-old, he suffered brain 
     damage following surgery at a New York City hospital. A state 
     court jury awarded him a hefty $80 million for medical 
     expenses and pain and suffering. In April, just two months 
     ago, an appeals court approved boosting the award against his 
     doctors and the hospital to an astonishing $140 million.
       But as Joan Butsko's modest award suggests, caps may not be 
     the answer. Insurance costs are up, but it's not clear that 
     juries or the courts are the culprits, or even that the 
     crisis is as dire as it's being portrayed. The statistics 
     don't line up as neatly as doctors and insurers would have 
     them, and left out of the argument is recognition that 
     ordinary market forces may be at work instead.
       For starters, there's no explosion of cases that might 
     drive up legal costs. The number filed each year has remained 
     fairly steady during the past decade, according to the 
     National Center for State Courts. Further, most malpractice 
     plaintiffs never even see a jury--two thirds of their cases 
     are dropped or dismissed--and when they do, it often isn't a 
     sympathetic one. Only a tiny sliver of cases filed--just 0.9 
     percent of some 5,500 cases surveyed for 2002--produce jury 
     verdicts for patients claiming injury. And even the size of 
     that small wedge is down by half since 2000, according to the 
     Physicians Insurers Association of America, the trade group 
     for malpractice insurers owned or operated by doctors, which 
     account for about 60 percent of the market.
       Within that wedge, the number of payments that doctors' 
     insurers make following jury verdicts has held steady in 
     recent years, at around 400 annually, according to a U.S. 
     News review of hundreds of thousands of payments of all kinds 
     reported to the federal National Practitioner Data Bank. 
     These payments total about $143 million each year. 
     Malpractice insurers are required by law to report their 
     payouts to the system.
       Doctors and insurers say that frequency of claims aside, 
     the prime issue is the size of awards. Indeed, the size of 
     insurer payments stemming from jury verdicts has been 
     increasing in recent years, U.S. News has found; in 2002 it 
     reached a median of $295,000. But, that's far below the 
     median jury award of $1 million the AMA and others often 
     cite. Even assuming two defendants per case--a number 
     insurers say is typical--plus other adjustments, the median 
     payment remains hundreds of thousands of dollars short of the 
     $1 million figure.
       But it's not clear that verdicts are really the whip behind 
     settlements. Over time, the size of a typical settlement 
     payment has grown somewhat faster than a typical jury verdict 
     payment. And while the sum from jury awards has remained 
     stable over the past decade, the total of payouts from 
     settlements has soared, especially recently, when doctors say 
     the crisis has emerged.

  Mr. President, that is what punitive damages do. They really set the 
pace.
  Dickie Scruggs and Ron Motley, the trial lawyers in the tobacco case, 
did more to cure people of cancer or prevent people from getting cancer 
than Dr. Koop and Dr. Kessler.
  I have been in the vanguard since Warren Magnuson had me have cancer 
hearings all the way back in 1967 and 1968. And over the years, we have 
tried everything in the world to stop people from smoking.
  If my time is up, I ask unanimous consent for 10 additional minutes, 
Mr. President.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. HOLLINGS. I thank the distinguished Presiding Officer.
  People talk about those two lawyers and say, ``Look at all the fees 
they got.'' I say look at all the good they did. Over the many years, 
we have had the American Cancer Society, we have had fundraisers, we 
have had cancer institutes, we have had all kinds of research and 
everything else like that, but how do you stop people from smoking? 
When they got that 360-some-billion-dollar settlement with the 
Government, the Attorney General, the medical community, and everybody 
concerned, and the State attorneys general, that failed to pass the 
Senate, so it was taken up, and I think it was $232 billion that the 
States settled for. That money is being paid out. In many States they 
have programs to teach youngsters to avoid smoking. I go to the heart 
of the Pee Dee in South Carolina where they grow tobacco, and you will 
see a big sign on the courthouse that says: ``No smoking.''
  Now, that really got me. Those two lawyers really deserve every dime 
they get out of the legal fees. They had been bringing cases upon cases 
upon cases, and I think their average victory was some 4 in 100 cases.
  They just lost another case down in Charleston last year. Of course, 
there have been ridiculous verdicts, like in Florida, where the 
punitive damages is somewhere around $27 million, but had been $145 
billion. Well, that was a six-man jury and a judge who did not know 
what they were doing. That was just a seven-man conspiracy. I agree, it 
was wild and unjustified.
  My point is, these trial lawyers are really doing a wonderful 
service. I can go to the class actions, I can go to the asbestos cases. 
The onslaught has got to be stopped here on this so-called tort reform 
because it is totally political. It is totally campaign funds. It is 
totally the election next year and not the needs of the country.
  Mr. President, that is what is going on, and colleagues have to wake 
up and realize we have a President who runs off to Africa, who has not 
settled Afghanistan, who does not know where he is in Iraq. All he 
knows is the election is next year, in November. So there we are. We 
are being put upon with not the needs of the country but, frankly, with 
the needs of the campaign.
  I have an article here dated September 7 of last year from the New 
York Times. I ask unanimous consent to have that article printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Sept. 7, 2002]

            Insurers Scale Back Corporate Liability Policies

             (By Jonathan D. Glater and Joseph B. Treaster)

       Shellshocked by corporate scandals and fearful of the hefty 
     payments they will have to make to settle shareholder 
     lawsuits, the big commercial insurance companies are cutting 
     back sharply on liability coverage for American corporations, 
     their directors and senior executives.
       The cutbacks are taking the form of higher deductibles and 
     lower limits on overall coverage. But the insurance companies 
     are also demanding that corporations pay part of any court 
     settlements or jury awards out of their

[[Page 17086]]

     own pockets. As a result, corporations in telecommunications, 
     energy, financial services and pharmaceuticals--where the 
     risk of being sued is thought to be highest--could face 
     payments of up to half of the cost of any settlement.
       The three leaders in this line of coverage--the American 
     International Group, the Chubb Group and Hartford Financial 
     Services--have already begun requiring some customers to 
     share the expense of settlements.
       The cutbacks effectively limit the size of policies 
     insurance companies will sell to any one company, said Andrew 
     Marcell, who is in charge of insurance for directors and 
     corporate officers at Guy Carpenter, a New York reinsurance 
     broker and a unit of the Marsh & McLennan Companies.
       ``Companies that until recently were willing to provide $50 
     million in coverage are now offering $25 million, and 
     companies that offered $25 million are now providing $10 
     million to $15 million,'' Mr. Marcell said.
       Enron had $350 million in this kind of coverage and some 
     corporations had been buying up to $1 billion worth. But now, 
     Mr. Marcell said, ``$250 million in coverage is pretty hard 
     to come by.''
       The sharing of the burden of settlements may also leave 
     directors' and officers' personal assets exposed, lawyers 
     said.
       ``This is very bad news for directors and officers,'' said 
     Michael Young, a partner at the law firm of Willkie Farr & 
     Gallagher in New York who often represents directors and 
     officers. ``The insurance industry is sending out the word 
     that for outside directors, insurance that provides 100 
     percent protection is going to be increasingly difficult to 
     get and companies are going to have to pay through the nose 
     for it.''
       John Keogh, a unit president of the American International 
     Group, said that some corporations could avoid sharing the 
     costs of lawsuits with insurance companies and get full 
     coverage up to limits of their policies by paying higher 
     premiums. But David H. McElroy, who is in charge of this kind 
     of insurance at Hartford Financial Services, said the 
     riskiest clients could not get full coverage at any price.
       The insurers say they are merely acting in self-defense as 
     they watch corporate giant after corporate giant collapse as 
     they come under fire for deceptive accounting and management 
     abuses that have drained companies like WorldCom, Global 
     Crossing and Tyco of hundreds of millions in corporate money.
       As share prices of these companies have plunged, 
     shareholders have turned to lawsuits in an attempt to recover 
     at least some of their losses.
       Combining the expected costs from some of the latest 
     lawsuits, which are still in their early stages, and scores 
     of others that have been working their way through the courts 
     over the last few years, insurers estimate that they will 
     have to pay out $7.5 billion this year on liability policies 
     for directors and officers--but they collected only $4.5 
     billion in premiums.
       ``The expected claims paid out are going to be multiples of 
     the premiums that have been collected,'' said Mr. Keogh of 
     A.I.G. He would not comment on specific numbers. Some 
     insurers said that they expected the actual losses to be 
     lower, but that the industry would still lose money this 
     year. Quietly, several insurers have also begun trying to 
     cancel certain policies, arguing that corporate fraud makes 
     them void--a nightmare for executives.
       The cutback in liability coverage and increases in premiums 
     are hitting corporations hard. Bruce S. Zaccanti, an 
     insurance consultant at Ernst & Young, said a nationwide real 
     estate management company he had been advising paid $3 
     million for $100 million in coverage last year. This year, 
     the company's premium jumped to $4.5 million for $70 million 
     in coverage. On top of that, he said, the deductible has 
     jumped to $15 million from $5 million.
       By forcing the companies to share the cost of settlements, 
     the insurers also hope to prod them to fight harder to keep 
     those costs down. When all the costs have been covered, the 
     insurers said, the corporations are often eager to settle 
     quickly--rather than work for a smaller settlement.
       ``There is no doubt in our minds that insureds' settlement 
     behavior has been less reluctant than maybe it once was when 
     there was an economic alignment,'' said Tony Galban, vice 
     president and manager of directors and officers liability 
     insurance underwriting at Chubb Specialty, a subsidiary of 
     Chubb & Son.
       In recent years, the average size of settlements in 
     securities lawsuits has increased drastically, rising to $16 
     million in 2001, according to the Securities Class Action 
     Clearinghouse, an organization at Stanford University that 
     tracks securities litigation. Before 1995, when a law was 
     passed making it tougher to bring securities fraud claims, 
     the average settlement was less than half that amount.
       The possibility that individual directors and officers 
     could be forced to dip into their own wealth may make it 
     harder to recruit executives to serve on corporate boards, 
     said Brooks Chamberlain, head of the global insurance 
     practice at Korn/Ferry International, an executive search 
     firm. Fearful of personal liability, more and more recruits 
     are conducting their own due diligence on prospective 
     employers, he said.
       Smaller companies, companies with financial problems, 
     companies in certain industries perceived to have a higher 
     incidence of fraud, and companies with fewer hard assets but 
     sizable market capitalizations will have more trouble, Mr. 
     Chamberlain said.
       According to Mr. Young of Willkie Farr & Gallagher, 
     directors want some assurance that somebody else will be able 
     to pay any settlement or damage award.
       ``What if the company goes into bankruptcy? Then who 
     covers?'' he asked rhetorically. ``Or what if the company's 
     just not wealthy enough?
       The changes have already had the odd effect of leading to 
     the creation of a new type of policy that will protect only 
     independent directors. A.I.G. will sell the policies that 
     cannot be canceled even in the case of management fraud, Mr. 
     Keogh said.
       But Gregory M. Schmidt, general counsel at the LIN TV 
     Corporation, an owner of television stations in several 
     states, wondered whether companies might choose not to take 
     on the additional cost of these policies and instead promise 
     to cover any settlement costs owed by the directors. ``The 
     question is whether that's going to be satisfactory'' to the 
     directors and officers, he said.
       LIN's policies are not up for renewal until March, he said, 
     but executives at the company are monitoring changes the 
     insurers are announcing.
       ``We're worried,'' he added.

  Mr. HOLLINGS. We really are in trouble. I have in my own State the 
widow of a physician who worked at a hospital in Columbia, where her 
husband died after surgery. They had to sue as a result of his death.
  How can we, the Congress, solve this problem? Let the doctors 
discipline the doctors. They are going to have to do it on the one 
hand. And let's have insurance reform. Yes, the Durbin-Graham approach 
is salutary in that it does away with the fixing of rates. That ought 
to be done away with. But the only way to really get at the problem 
itself is what they did in California with proposition 103 that passed 
in 1988 and that is to regulate the rates themselves.
  You can get the information only then from the insurance companies, 
and I have tried my best as a member of the Commerce Committee, subject 
to insurance jurisdiction, to try to again and again, year in and year 
out. And the insurance companies won't tell you anything because they 
say they are State regulated and we have no jurisdiction whatsoever 
over them. If there is one thing that is engaged in interstate 
commerce, it is insurance.
  Let's don't just go with terrorism insurance, and just tax credits to 
pay the premiums, and patchwork little Band-Aids on this problem. Let's 
get to the real heart of the problem. The insurance companies lost 
money. They lost it on Kenny Boy. And now the officers and directors of 
these corporations are being sued, and the rates have gone up with 
respect to corporate bad practice. The only way to get at it is 
insurance reform itself.
  We are just acting like a dog chasing its tail when we go on about 
tort reform, and the lawyer's fees, and joint and severable liability, 
and product liability. If they are real problems, every State has a 
legislature and they are subject to that jurisdiction. They can do it. 
But as far as insurance goes, I have worked with them. I have seen 
them, after 50 years of governmental service at every level. I had to 
clean up my own insurance department as Governor of South Carolina. I 
know it intimately.
  I can tell you that we have an insurance reform bill, and I want to 
work with my colleagues on this, for this is how to take care of the 
medical malpractice increase in premiums.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Ohio is recognized.
  Mr. VOINOVICH. Mr. President, I rise today in strong support of S. 
11, the Patients First Act, of which I am an original cosponsor. 
Throughout my career in public service, health care has been one of my 
top legislative priorities. We all want access to quality, affordable 
health care. And when the quality is not there, when people die or are 
truly sick due to negligence or other medical error, they should be 
compensated. But when healthy plaintiffs file meaningless lawsuits to 
coerce settlements or to shake the money tree to get as much as they 
can get, there's

[[Page 17087]]

a snowball effect and all of us pay the price.
  For the system to work, we must strike a delicate balance between the 
rights of aggrieved parties to bring lawsuits and the rights of society 
to be protected against frivolous lawsuits and outrageous judgments 
that are disproportionate to compensating the injured and made at the 
expense of society as a whole.
  I have been concerned about this issue since my days as Governor of 
Ohio. I wish we had the outpouring of support for medical liability 
reform 6 years ago that I see now. In 1996, I essentially had to pull 
teeth in the Ohio Legislature to pass my tort reform bill. I signed it 
into law in October 1996. Three years later, the Ohio Supreme Court 
ruled it unconstitutional, and if that law had withstood the Supreme 
Court's scrutiny, Ohioans wouldn't be facing the medical access 
problems they are facing today: doctors leaving their practice, 
patients unable to receive the care they need and costs of health 
insurance going through the roof.
  During my time in the Senate, I have continued my work to alleviate 
the medical liability crisis. To this end, I worked with the American 
Tort Reform Association to produce a study that captured the impact of 
this crisis on Ohio's economy in order to share these findings with my 
constituents and colleagues. Guess what we found? In Ohio, the 
litigation crisis costs every Ohioan $636 per year, and every Ohio 
family of four $2,544 per year. These are alarming numbers! In these 
economic times, families can not afford to pay $2,500 for the lawsuit 
abuse of a few individuals.
  It is not just the individuals but the lawyers who bear some of the 
responsibility. I recently received my yellow and white pages. Look 
what I found on the front and back covers, advertisements for personal 
injuries. This is the yellow pages of the Cleveland phonebook and the 
white pages, advertisements on the front cover and on the back cover. 
One of them says: Medical malpractice. It talks about wrongful death, 
quadriplegic/paraplegic. They have pictures, birth injuries, nursing 
home negligence, Erb's palsy, cerebral palsy, heart attacks/late 
treatment, cancer late diagnosis, emergency room negligence.
  It goes on to say, ``Our firm will advance expenses for our clients 
in most cases,'' and ``Clients do not have to repay expenses unless 
there is a successful outcome.'' This kind of stuff is in the yellow 
pages and on television every night.
  When I got out of law school, solicitation was a violation of the 
canons of professional ethics of lawyers. That has all changed today. I 
think unfortunately so.
  Next to the economy and jobs--the most important issue facing our 
country today is health care. In fact, it is a major part of what is 
wrong with the economy. We have too many uninsured, employers face 
spiraling costs, and those who have insurance face soaring premiums 
every year. The impact on businesses is great. It affects their ability 
to offer health insurance to employees. Too many times, they pass on 
the added costs to their employees, whose family budgets are often 
already stretched razor thin. And then there are those who lose their 
jobs and can't afford COBRA, assuming their company is still in 
business and COBRA is available.
  This issue is a personal one for me. My daughter-in-law, who is 
expecting her fourth child, recently learned from her obstetrician that 
after her delivery, she is no longer going to deliver any more babies. 
Her doctor is in a four-physician group, all of them obstetricians. 
They have never had any lawsuits against them, yet their insurance 
premiums have skyrocketed from $81,000 three years ago to over $381,000 
today. That's $75,000 per person over a period of 3 years. How can 
physicians be expected to afford rate hikes like these? And how many 
babies do they have to deliver in order to pay for medical insurance. 
Think of somebody getting out of medical school that is an OB/GYN and 
being told: Before you open the door, you will have to pay a premium of 
$75,000 to $80,000 to practice medicine.
  This crisis is out of control, and when you listen to the statistics, 
you will be astounded:
  From 1994 to 2000, the median award for medical negligence in 
childbirth cases, $2.05 million, was the highest for all types of 
medical malpractice cases analyzed.
  The median medical liability award jumped 43% in one year, from 
$700,000 in 1999 to $1 million in 2000; it has doubled since 1995.
  Medical liability reform could produce $12.1 billion to $19.5 billion 
in annual savings for the Federal Government and increase the number of 
Americans with health insurance by up to 3.9 million people.
  There are some who say the Federal Government doesn't have a dog in 
the fight. We certainly have, when medical liability reform could 
produce $12.1 billion to $19.5 billion in annual savings and increase 
the number of Americans covered by insurance.
  Seventy-six percent of physicians in Ohio, surveyed by the Ohio State 
Medical Association, said rising professional liability premiums have 
impacted their willingness to perform high-risk procedures.
  Over half said they are considering early retirement as a result of 
rising costs.
  There has also been an immense jump in million-dollar verdicts. In 
1995-97, a little over 36 percent of cases resulted in an award of $1 
million or more. By 1998-99, the rate of million dollar awards reached 
43 percent. By 2000-01, it was at 54 percent, with one quarter of all 
awards exceeding $2.7 million. It is going up like a rocketship.
  These numbers are shocking, and they continue to grow. We feel this 
crisis very strongly in Ohio. Medical Liability Monitor ranked Ohio 
among the top five states for premium increases in 2002. OHIC Insurance 
Co., among the largest medical liability insurers in the State, reports 
that average premiums for Ohio doctors have doubled over the last 3 
years. But don't listen only to the statistics. Let's talk about 
doctors--human beings who have practices and patients:
  Dr. Perm Jawa, a Cleveland urologist, says that soaring liability 
premiums leave him in perpetual fear of career-ending lawsuits. ``I shy 
away from major cases now. Sometimes you know what the best thing is 
but you don't want to be doing it because there are potential 
complications with it,'' Jawa said. ``You're not as aggressive as you 
should be.''
  In Columbus, Dr. David Stockwell has seen coverage for his two-
physician OB-GYN practice climb to over $100,000 a year. And he 
expected his premiums to rise 20 to 25 percent in May.
  Dr. Robert Norman, a geriatrician in Cuyahoga Falls, saw his annual 
medical liability premium jump $5,700 to $34,000 last year. He had been 
warned that it could reach $100,000 this year if he continued treating 
patients in nursing homes. But in May he received an unexpected 
ultimatum from his insurer and every other carrier he queried: agree to 
stop seeing nursing home patients or lose liability coverage 
altogether. As a result, 150 of Dr. Norman's patients had to find a new 
doctor.
  Dr. Stephen Cochran lost his hospital privileges at Akron General 
Medical Center when his insurer's financial stability rating was 
downgraded recently. He is seeking another insurer, but meanwhile, he 
says, ``We receive daily phone calls from the patients: `Why aren't you 
here? Why aren't you seeing me? I want my doctor.''' He says. ``It's 
been very stressful to a lot of the patients, particularly the 
geriatric patients . . . This [the malpractice crisis] has probably 
changed the nature of our practice more than anything that has happened 
in the last 10 to 20 years.''
  After practicing for 15 years--their entire careers--in Cleveland, 
Dr. Christopher Magiera and his wife, surgeon Patricia Galloway, 
decided to leave Ohio to seek refuge from overwhelming liability 
premiums. Their insurance agent warned them that both would soon be 
paying $100,000 in annual premiums, up from $30,000 this year. Magiera 
and his wife decided to ``get out before the situation became 
hopeless,'' he said. They resettled in Wisconsin. Good for Wisconsin.

[[Page 17088]]

  This is disgraceful. This crisis is forcing doctors to close their 
doors and greatly affecting patient access to care.
  I want to commend the physicians' grassroots efforts--they are really 
starting to get attention for this issue. On May 3, 2003, I spoke in my 
home State of Ohio at the annual conference of the Ohio State Medical 
Association. I also participated in a physicians rally last October in 
Columbus, OH which was sponsored by the Ohio State Medical Association. 
I was impressed with all of the speakers, in particular, Dr. Evangeline 
Andarsio, an OB-GYN from Dayton, who described the changes in the 
profession and the effect of the litigation cloud:

       The professional liability crisis is creating a barrier to 
     patients' access to good medical care, especially pregnant 
     women. . . . a paradigm shift needs to occur in our society. 
     Our laws must change to begin to reflect this paradigm shift.

  After speaking at this rally, I received a letter from a young 
doctor, telling me that he was leaving Ohio because he couldn't afford 
his medical liability insurance premiums. Dr. Cly had received a notice 
from his insurance carrier that his premiums would be increased by 
$20,000-30,000. This, plus the $20,000 increase from last year, forced 
him to make the difficult decision of uprooting his family and his 
practice to another State. Dr. Cly was unable to make the insurance 
premiums and still take care of his student loan obligations and his 
family. Even though he has never had a malpractice claim or judgment 
against him during his residency training or his private practice 
years, his rates continued to skyrocket to the point where he could no 
longer afford them. His move to Fort Wayne, IN, will save him $50,000 
per year in liability insurance.
  In his letter to me, which I would like to submit for the record, Dr. 
Cly writes:

       I represent young physicians in Ohio. Most young physicians 
     I speak with are all considering relocating to a place where 
     the ability to practice medicine is better and the liability 
     situation is more stable. I do not want to leave. I have 
     developed close relationships with many patients, families, 
     nurses, physicians, and staff here in Dayton, Ohio. I always 
     planned to retire here and raise my children here. It saddens 
     me greatly to have to make this decision. I feel as if I am 
     giving up and ``throwing in the towel'' by leaving, but I 
     believe my decision is the right one for my family.

  I ask unanimous consent that this entire letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                     May 16, 2003.
     Hon. George V. Voinovich,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Voinovich: Thank you for you listening to the 
     challenges Ohio physicians are facing regarding the medical 
     malpractice insurance premiums. As you may recall, I was the 
     young physician from Dayton, Ohio who spoke with you after 
     your speech to the Ohio State Medical Association May 3, 
     2003, while you were walking to another meeting. I work 
     alongside Dr. Evangeline Andarsio at Miami Valley Hospital.
       I too, am an obstetrician/gynecologist here in Dayton, 
     Ohio. I have been in Dayton since 1988 when I attended the 
     University of Dayton. I later went to Wright State University 
     School of Medicine in 1992. After graduating from medical 
     school, I did my residency training at Miami Valley Hospital 
     from 1996 until 2000. I have been in private practice for the 
     past 3 years.
       In order to attend college and medical school I had to take 
     out educational loans and work during those years. As a 
     result, I have accumulated $150,000 in student loans. With 
     the decreasing reimbursement and increasing medical liability 
     insurance premiums I am not able make much effort in paying 
     off my student loans. In addition, I am married with a set of 
     5 year old boy and girl twins. I haven't been able to afford 
     to save for their future college educations yet, nor have I 
     been able to put away much money in a retirement plan for me 
     and my wife.
       Unfortunately, the liability insurance rates are being 
     unfairly and significantly increased once again this July by 
     our carrier, OHIC. I am expecting another $20,000-30,000 
     increase from the $20,000 increase last year. Currently, 
     prior to the July increase, I am paying $55,000 for my 
     insurance premium. It is important to know that I have never 
     had a malpractice claim or judgment during my residency 
     training or private practice years.
       I no longer afford to stay in Dayton or Ohio to practice 
     medicine. I am leaving the state, in July, 2003, and I will 
     be moving to Fort Wayne, Indiana to practice medicine. I will 
     save approximately $50,000 per year in liability insurance 
     alone. In addition, the managed care penetrations is much 
     less and the reimbursement is better. These factors will 
     allow me to begin eliminating my debt and saving for my 
     family's future.
       I represent young physicians in Ohio. Most young physicians 
     I speak with are all considering relocating to a place where 
     the ability to practice medicine is better and the liability 
     situation is more stable. I do not want to leave. I have 
     developed close relationships with many patients, families, 
     nurses, physicians, and staff here in Dayton, Ohio. I always 
     planned to retire here and raise my children here. It saddens 
     me greatly to have to make this decision. I feel as if I am 
     giving up and ``throwing in the towel'' by leaving, but I 
     believe my decision is the right one for my family.
       I am extremely thankful of your willingness to help 
     physicians with this crisis. I am genuinely concerned about 
     the future of medicine for our patients. If these issues 
     aren't corrected soon, many patients will suffer due to the 
     lack of access to care.
       If I can be of any assistance please contact me. My home 
     phone is 937-376-0705. My cell phone is 937-657-5094. My 24 
     hr pager is 937-636-3263. My office numbers, until June 27, 
     2003, are listed above. My email is [email protected].
           Sincere Thanks,
                                                 Geoffrey Cly, MD.

  Mr. VOINOVICH. For those of my colleagues who think medical liability 
reform is a State issue, I ask them to read this letter and see how the 
medical liability crisis transcends State lines--particularly my 
friends from the neighboring State of West Virginia. Our Ohio 
physicians who practice along the border are feeling the effects of 
their proximity to West Virginia and its favorable plaintiff's 
verdicts. They are feeling these effects in their increasing insurance 
premiums.
  This is a nationwide crisis. And it's not only doctors crossing State 
borders to find better insurance rates--it's patients as well. Citizens 
living along the thousands of miles of State borders very often obtain 
their medical care across that line. Federal action is appropriate and 
critically necessary. Even more so because this crisis affects Federal 
health care programs, including Medicare and Medicaid, and costs the 
Federal Government billions of dollars every year.
  In fact, the cost of this crisis to the economy is quite staggering. 
With over 41 million Americans without health insurance, including an 
estimated 1.25 million Ohioans at some time in 2001, we have to look at 
a new system--because this crisis is not only bad for doctors and 
patients, it also affects our competitiveness in the global 
marketplace. Many of our company's insurance costs have skyrocketed 
because of medical lawsuit abuse costs that their competitors just do 
not have.
  The Nation's medical schools and students feel the effects of the 
medical liability crisis. According to the National Resident Matching 
Program, a private, nonprofit corporation, the number of American 
medical students applying to general surgery residency programs 
declined by 30 percent from 1992 to 2002. If this trend continues, less 
than 5 percent of medical school graduates will choose a career in 
surgery by 2005, and only 75 percent of general surgery residency 
positions will be filled by graduates of medical schools in the United 
States.
  Thank God we have foreign doctors who have come to the United States 
of America. In Ohio, one out of six doctors is an Asian Indian.
  And, in its 2003 biennial survey of medical residents in their final 
year of training, the firm of Merritt, Hawkins & Associates, MHA, 
noticed a disturbing trend. When asked if they would study medicine or 
select another field if they had their education to begin again, one 
quarter of all residents surveyed indicated they would select another 
field--this compared with only 5 percent in 2001. It is sweeping across 
the country and everybody is getting hit. It is going to have a 
disastrous effect--it already is--and we have to do something about it. 
When asked to identify what factors caused them a significant level of 
concern, sixty-two percent of residents indicated that malpractice is a 
significant area--compared to just 15 percent of residents surveyed 2 
years ago.
  Specific medical specialties feel the crisis more than others. A 
September

[[Page 17089]]

25, 2002 report by the American Association of Neurological Surgeons, 
Congress of Neurological Surgeons, and Council of State Neurological 
Societies, entitled ``Neurosurgery in a State of Crisis'' found that 
professional liability costs among Ohio neurosurgeons have skyrocketed 
since 2000. For a $5 to $7 million coverage policy, in 2000, a 
physician would have paid $75,000. By 2002, this number had jumped to 
$168,000.
  Not only in Ohio, but across the nation, between 2000 and 2002, the 
average premium increase was 63 percent. As a result, of those 
neurosurgeons polled: 14 percent said they plan to, or are considering 
moving; 25 percent said they either plan to, or are considering, 
retiring; 34 percent said they already do, or are considering, 
restricting their practices.
  In my hometown of Cleveland, OH, at one of our hospitals, the 
neurosurgeons just left. There was no one there to take care of 
emergency patients, although just recently because of something the 
Cleveland Clinic did, they agreed to step in, but there were four 
neurosurgeons serving about 15 hospitals, and they just decided they 
were getting out. Who is going to pick that up for them? What is going 
to happen to those patients?
  Patients cannot get emergency medical treatment because fewer 
neurosurgeons are covering ERs, and trauma hospitals are shutting their 
doors and diverting patients with serious head and spinal cord injuries 
to other locations.
  Patients cannot find a neurosurgeon close to home because 
neurosurgeons are moving to States where insurance costs are relatively 
stable.
  Further exacerbating this problem is the high retirement rate. 
According to the American Board of Neurological Surgery, in 2001 alone, 
over 300 neurosurgeons retired. This is 10 percent of our Nation's 
neurosurgical workforce. And for the first time in over a decade, there 
are now fewer than 3,000 board certified neurosurgeons practicing in 
the U.S.
  Earlier this year, I participated in a press conference with my 
distinguished colleague from Pennsylvania, Senator Santorum, and my 
distinguished colleague from Nevada, Senator Ensign. During this 
conference, I met a doctor from Florida who had rushed his son to the 
hospital with his head hemorrhaging, only to find that there were no 
pediatric neurosurgeons there. He asked if a regular neurosurgeon could 
help, but they could not because pediatric neurosurgeons require 
special liability insurance. Due to the exorbitant costs of insurance 
for pediatric neurosurgeons, only seven were practicing in the State of 
Florida and the nearest one was 150 miles away. Fortunately, the boy 
survived, but this type of scenario does not need to happen.
  I was recently speaking with some doctors in Cleveland who told me 
that the nephrologists practicing there will not even look at a baby 
facing kidney problems, because adding pediatric work to their existing 
practices will cause their premiums to skyrocket.
  The effects of the medical liability crisis can also be felt by the 
obstetrics-gynecologists community. In fact, obstetrics-gynecology is 
among the top three specialties in the cost of professional liability 
insurance premiums. Nationally, insurance premiums for OB-GYNs have 
increased dramatically: the median premium increased 167 percent 
between 1982 and 1998. The median rate rose 7 percent in 2000, 12.5 
percent in 2001, and 15.3 percent in 2002 with increases as high as 69 
percent, according to a survey by Medical Liability Monitor, a 
newsletter covering the liability insurance industry.
  According to Physicians Insurance Association of America, OB-GYNs 
were first among 28 specialty groups in the number of claims filed 
against them in 2000. OB-GYNs were the highest of all specialty groups 
in the average cost of defending against a claim in 2000, at a cost of 
$34,308. In the 1990s, they were first--along with family physicians-
general practitioners--in the percentage of claims against them closed 
with a payout of 36 percent. They were second, after neurologists, in 
the average claim payment made during that period.
  Although the number of claims filed against all physicians climbed in 
recent decades, the phenomenon does not reflect an increased rate of 
medical negligence.
  That is something we should point out. It does not reflect an 
increased rate in negligence.
  In fact, OB-GYNS win most of the claims filed against them. A 1999 
American College of Obstetrics and Gynecology survey of its membership 
found that over one-half of claims against OB-GYNS were dropped by 
plaintiffs' attorneys, dismissed or settled without a payment. Of cases 
that did proceed, OB-GYNS won seven out of ten times. Enormous 
resources are spent to deal with these claims, only 10 percent of which 
are found to have merit. The costs to defend these claims can be 
staggering and often mean that physicians invest less in new 
technologies that help patients. In 2000, the average cost to defend a 
claim against an OB-GYN was the highest of all physician specialties: 
$35,000.
  According to an ACOG survey of its members, the typical OB-GYN is 47 
years old, has been in practice for over 15 years, and can expect to be 
sued 2.53 times over his or her career. Over one-fourth of ACOG fellows 
have even been sued for care provided during their residency. In 1999, 
76.5 percent of ACOG fellows reported they had been sued at least once 
so far in their career. The average claim takes over 4 years to 
resolve.
  Practicing medicine and having lawsuits hanging over your head, and 
only 10 percent are well taken, can you imagine, Mr. President, how it 
is to practice medicine under those conditions?
  How does all of this affect patients' access to care?
  As premiums increase, women's access to general health care--
including regular screenings for reproductive cancers, high blood 
pressure and cholesterol, diabetes, and other serious health risks--
will decrease. OB/GYNs are disappearing.
  It leads to more uninsured women. Last year, 11.7 million women of 
childbearing age were uninsured. Without medical liability reform, a 
greater number of women ages 19 to 44 will move into the ranks of the 
uninsured.
  The legislation we are debating today gets us on our way to enacting 
meaningful medical liability reform.
  There are going to be a lot of excuses. We are going to hear from 
some colleagues as to why this is not a good thing, and they are going 
to get into specific caps and so forth.
  The fact is, this legislation provides a commonsense approach to our 
litigation problems that will help keep consumers from bearing the cost 
of costly and unnecessary litigation, while making sure those with 
legitimate grievances have recourse to the courts.
  That is what we want to do. We want to make sure those who are 
legitimately harmed have recourse to the courts and are compensated.
  The bill sets sensible limits on noneconomic damages to help restrain 
medical liability premium increases, while ensuring unlimited economic 
compensation for patients injured by negligence.
  In other words, there is no cap on economic compensation. All of 
those issues that can be documented, you can be reimbursed for. It 
limits attorney's fees so the money awarded in the court goes to the 
injured parties, who are the people who really need it. It mandates 
that relevant medical experts testify in malpractice trials, as opposed 
to highly paid ``expert witnesses'' who are often used to influence 
juries and foster abuses in the legal system. It also allows physicians 
to pay any large judgments against them over a period of time in order 
to avoid bankruptcy, and requires all parties to participate in 
alternative dispute resolution proceedings, such as mediation or 
arbitration, before going to court.
  It is a sensible way of handling a problem in our country and, at the 
same time, looking at the societal costs that are being paid today by 
all Americans.
  Providing this commonsense approach to our medical liability premiums 
is a win-win situation. Patients

[[Page 17090]]

would not have to give away large portions of their judgments to their 
attorneys, truly injured parties can recover 100 percent of their 
economic damages, punitive damages are reserved for those cases that 
are truly justified, doctors and hospitals will not be held liable for 
harms they did not cause, and physicians can focus on doing what they 
do best: practicing medicine and providing health care.
  I end with the words of Dr. Andarsio, whom I quoted earlier:

       Help us to maintain an ability to have a practice that 
     offers patients excellent access to care--to continue one of 
     the most important relationships in our lives--the doctor-
     patient relationship--thus maintaining individualized and 
     compassionate care.

  In my own particular case--and it may be why I am probably more fired 
up about this than some people in the Senate--when I was about 2 years 
old, I contracted osteomyelitis.
  It is a disease in the marrow of the bone. There was a lot of 
controversy among a couple of doctors on how I should be treated for 
that osteomyelitis. There was one physician who had the courage to try 
some new things. His name was Dr. Holloway. Dr. Holloway saved my life. 
I will not ever forget going to his funeral.
  There are a lot of other people around this country like George 
Voinovich who are in need of access to orthopedic surgeons and other 
types of medical care. I want them to have the same opportunity I had, 
to have a life. That is what this is about.
  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. McCONNELL. 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. McCONNELL. Mr. President, I also understand we are under an 
agreement that we go back and forth. It could be that a Democratic 
speaker might have been next. Therefore, I ask unanimous consent that I 
be allowed to go ahead and speak since I am in the Chamber and prepared 
to speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, I have heard colleagues on the other 
side of the aisle extol the virtues of the Weiss report to justify 
opposing limits on noneconomic damages. Some of our colleagues on the 
other side of the aisle seem to view this report as the end all and be 
all of reports on the effect of damage caps.
  This Weiss report makes the rather bold and somewhat astonishing 
assertion that States with caps on damages actually have higher 
premiums than States without caps on damages. I never heard of such a 
conclusion. Indeed, it flies in the face of common sense, common 
experience, and the expertise of actuaries and insurance commissioners.
  As one can imagine, I was intrigued by this report and wanted to 
learn more about it. Upon reviewing the report, it reminded me of the 
saying by Mark Twain, or Will Rogers, who said: There are lies, there 
are damn lies, and then there are statistics.
  I am wondering how Weiss calculated the median premiums found in his 
report. No one can seem to figure that out because the report never 
really explains how the median premium was established.
  The Weiss report uses data over a decade-long period. We are talking 
about the cost of something, in this case insurance coverage, over a 
substantial amount of time. Inflation is a pretty basic statistical 
variable for which one should account. Does the Weiss report take 
inflation into account in reaching its conclusion regarding caps? It 
looks as if the Weiss report knows that to do a proper analysis one 
should take inflation into account. After all, it does so in analyzing 
insurance company payoffs.
  For some inexplicable reason the Weiss report fails to do so in its 
analysis of the increase in insurance company premiums. There is no 
indication Weiss took inflation into account, despite the fact it does 
so in making a similar calculation for insurance company payoffs in 
other parts of the report. If I didn't know better, I would say such a 
glaring and telling omission was part of an effort to arrive at a 
predetermined conclusion.
  The publication from which the Weiss report obtained its data is 
something called the Medical Liability Monitor. It is one of the best 
sources for medical malpractice premium information. Many legitimate 
reports use the data found in this publication to help explain the 
crisis. The most recent comprehensive rate survey in the Medical 
Liability Monitor, dated October 2002, had a headline that reads ``2002 
rate survey finds malpractice premiums are soaring. Hard market wallops 
physicians. Average rate increase more than double those in 2001.''
  It seems to me the methods the Weiss report uses are not only wrong 
but, in fact, misleading. The Weiss report is so seriously flawed, 
according to the Medical Liability Monitor, the experts who collect the 
data that Weiss manipulated, actually had to print the following 
disclaimer in a June 2003 issue to ensure this report was not used to 
mislead the public.
  Let me read the most salient parts.

       The Weiss ratings analysis of medical malpractice caps 
     cites Medical Liability Monitor as the source of data Weiss 
     uses to calculate average and median premiums for physicians 
     during the last 12 years.
       While we are an independent news publication and take no 
     position on tort reform or other proposals to improve the 
     medical liability climate, we feel it necessary to comment on 
     the use of our statistics because some readers have expressed 
     concern.
       The medians and averages in the Weiss report are not the 
     numbers we report in our annual rates surveys. Weiss may have 
     taken our numbers--the amounts and increases of premiums paid 
     by doctors State by State--and used them to arrive at their 
     statistics, but it is impossible from their report to say 
     definitely how our numbers have been used.
       It is our view that it is impossible to calculate a valid 
     ``average'' premium for physicians or for physicians in a 
     particular State or territory, and we state that clearly in 
     the executive summary of our rate survey.

  But the editor of the Medical Liability Monitor goes further, 
advising the leaders it is misleading to use median annual premiums 
compiled from data from the Medical Liability Monitor to demonstrate 
the effect of noneconomic damage limits on medical liability rates. 
This is exactly what Weiss does. The report uses median annual premiums 
compiled with data from the Medical Liability Monitor to try to 
demonstrate the effect of noneconomic damage limits on liability rates. 
Not only is this wrong, it down right misleads the public.
  I would be the first to confess I am not an expert on the subject but 
according to many experts, including the PIAA, it is impossible to 
calculate a valid and useful median premium using the numbers found in 
the Medical Liability Monitor for many reasons. One of the obvious 
reasons is a median is not a weighted average. Thus, the Weiss 
methodology, as far as we can tell, actually inflates the insurance 
carrier's premium increase by not weighing premiums according to market 
share. This is critically important because the highest rate probably 
has the lowest market share.
  In fact, the Medical Liability Monitor does not report how many 
doctors have a particular premium, so a helpful weighted average is 
impossible to calculate based upon that data as the authors of the 
Weiss report will tell you.
  In short, according to the very experts upon whom the Weiss report 
relies, the conclusion of the Weiss report on the effective economic 
damages are wrong, misleading, and should be avoided.
  I think it is better to look at some legitimate studies. While folks 
should question the Weiss study, we can generally trust CBO. So let's 
look at some highlights from CBO.
  Reading from pertinent parts, States with limits of $250,000 or 
$350,000 on noneconomic damages have an average combined highest 
premium increase of 15 percent compared to 44 percent to States without 
caps on noneconomic damages. In California, where the State has placed 
a cap on noneconomic damages, punitive damages, or rewards for pain and 
suffering at a quarter of a million, insurance rates have not shown the 
sharp increase experienced in other States.

[[Page 17091]]

  Looking at my next chart which has been used by a number of 
proponents of the underlying legislation, it is very clear that major 
cities in States which have adopted some kind of caps on noneconomic 
damages are experiencing lower malpractice insurance rates for 
physicians. California and Colorado, where there are sensible 
restraints on noneconomic damages, whether you look at a specialty of 
internal medicine or general surgery or obstetrics, there is a dramatic 
difference between the rates in California and in Colorado compared to 
States such as New York, Nevada, Illinois, and Florida where there are 
no such caps.
  The most dramatic example, I suppose, is in the area of obstetrics 
where in California the annual premium is $54,000; in Colorado, 
$30,000; compare these figures to a premium for obstetrics in Florida, 
which is $200,000 a year, Illinois is $100,000 a year, Nevada is 
$107,000 a year, and New York is just under $90,000 a year. These are 
actual 2002 premium survey data looking at selected specialties in 
States where there are caps versus States where there are no caps.
  I repeat, once again, this legislation does not deny the victim a 
full recovery for all economic damages, plus on top of that, a quarter 
of a million dollars for pain and suffering, plus on top of that, 
punitive damages at twice the amount of economic damages or a quarter 
of a million, whichever is greater.
  This is a bill that does provide for victims. In addition to that, it 
provides some reasonable restraint on lawyer's fees, which of course 
also benefit the victim because the dollars the lawyers don't get, the 
victims do.
  We can have many legitimate arguments. I know my colleagues on the 
other side of the aisle seem to be terribly concerned about States' 
rights as it applies to this issue. I think that is certainly a 
reasonable argument to make. But it seems to me it borders on 
nonsensical to argue that caps on noneconomic damages have not had an 
impact on premiums, because clearly they have. The facts speak for 
themselves. All you have to do is look at the premiums for these 
specialists in States where there are caps on noneconomic damages and 
compare them to premiums in States where there are not. Clearly it 
makes an enormous difference.
  Taking a look at California again, their underlying legislation, 
which is commonly referred to as MICRA, is the model for the bill which 
we hope to be able to proceed to. California has had very stable rates 
over the years going back to 1976 when MICRA was adopted, going right 
up to the present. If you look at the rest of the United States, 
California has had a 182 percent increase in medical malpractice 
liability insurance premiums over this quarter of a century period, but 
if you compare that to the rest of the country, there has been a 573 
percent increase. Any way you look at it, the California law obviously 
has had a positive impact on making it possible for physicians to 
afford their liability insurance and therefore continue to offer health 
services for their people.
  That takes us back to where I started yesterday. A year ago when the 
underlying bill was offered as an amendment, or a portion of it was 
offered as an amendment, we had a number of States in crisis. Today we 
have more States in crisis. Wyoming just yesterday changed from a state 
with problem signs to a state in crisis. Also, in the year since we 
last debated this issue, my own State of Kentucky, which was a State 
with problems a year ago, is now a State in crisis. We have to add both 
states to the red State list.
  Connecticut. A year ago Connecticut was a State in trouble. Today, it 
is a State with a genuine crisis. So it will have to be added to the 
crisis State list today.
  North Carolina. A year ago North Carolina was a State with problem 
signs. Today it is a State that is in crisis over this issue.
  Arkansas. One year ago when we were considering legislation similar 
to this, Arkansas was a State with problems. Today, Arkansas is a State 
in crisis.
  Missouri. A year ago, Missouri was in trouble. But today it is in 
crisis.
  Finally, Illinois would have to be added today as a State in crisis.
  So let's take a look at the map, where we stand today. As I can count 
them, there are only six States in America that are currently OK 
according to the AMA; that is, physicians are not avoiding choosing 
certain specialties or retiring early or closing their shops over the 
cost of their medical malpractice premiums. We now have 19 red States. 
Red States are States in crisis. I think we had 11 this time a year 
ago. Now we are up to 19. Then the rest of America is yellow. That is, 
States with problem signs. At the rate we are going, many of these 
yellow States will become red States in the coming months if we do not 
act to deal with this truly national problem.
  I think the argument of States' rights occasionally makes sense, but 
this is a national issue, affecting health care for all Americans. This 
is really largely about the patients. Some people have described this 
as sort of a titanic struggle with doctors and insurance companies on 
one side and lawyers on the other. Frankly, I am not particularly 
interested in that struggle. I am sure it exists in a number of 
different ways. The real issue is whether or not patients are going to 
be cared for, whether or not there is going to be a medical 
professional within reasonable proximity of patients in order to 
deliver a service all Americans are entitled to. That is no longer the 
case in a significant part of our country.
  In my State in eastern Kentucky we have had a number of horrendous 
occurrences as a direct result of medical professionals not being 
available because they went out of business. They simply could not 
afford to pay their medical malpractice insurance premiums and still be 
in business. So this is a national crisis.
  Let me just say in closing, we are debating a motion to proceed. 
Reasonable people can differ about how to do something about this 
crisis, but I don't think there are many Senators coming out here, 
saying this is not a crisis. It is a crisis. Even those who are 
opposing the motion to proceed, I would expect most of them think we 
have a major problem here. One of the advantages of voting for the 
motion to proceed is to get us onto the bill so amendments can be 
considered. I would not even rule out the possibility that by the time 
we came to final passage of this legislation, it might look quite 
different. I might not like that, but I am not sure where the votes are 
unless we get onto the bill and have a chance to consider amendments 
and options to deal with this measure about the national health care 
crisis.
  Two weeks ago we added a prescription drugs benefit to a reformation 
of Medicare. The House has acted. A conference will unfold in the 
coming weeks and we will on a bipartisan basis deal with one of the 
major health care issues confronting senior citizens, that is how to 
afford prescription drugs and whether or not they are going to have 
choices under the Medicare program.
  Now we need to turn our attention to another major health care 
crisis, and that is the unavailability of health care in major portions 
of the country simply because physicians can no longer afford to pay 
their medical liability insurance premiums and still provide health 
care for patients. That is why we call this the Patients First Act of 
2003.
  I hope tomorrow, late morning, when we have the vote on cloture on 
the motion to proceed, that cloture will be invoked, that we will move 
on to this legislation, consider the various suggestions that have been 
made by Senators on both sides of the aisle as to how we ought to deal 
with this crisis. But let's act. Let's act. Let's make an effort to 
tackle one of America's great health care problems of the 21st century.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. HAGEL. Mr. President, I ask unanimous consent that I be allowed 
to address the underlying bill for no more than 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page 17092]]

  The Senator from Illinois.
  Mr. DURBIN. Mr. President, I will not object, but I would like to 
amend that to be recognized after the Senator from Nebraska.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HAGEL. Mr. President, rapid increases in the cost of medical 
liability insurance are forcing many physicians to stop performing 
high-risk procedures, limiting the kind of patients they will see, 
moving to another State where the liability climate is more favorable, 
or, simply, they take the option of early retirement. When this occurs, 
who wins? Who benefits? No one. Everyone loses.
  Twenty-six States, including my State of Nebraska, have instituted 
some sort of cap on noneconomic damages. However, some States have had 
their caps overturned by the courts and other States are barred by 
their State constitutions from enacting a cap. Medical liability and 
access to quality health care are national problems. Medical liability 
reform is needed to help preserve the ability of health care providers 
to obtain affordable malpractice insurance so we can remain in practice 
and deal with the health care needs of America. At the same time, we 
must ensure that victims of medical malpractice continue to have access 
to the courts and jury awards.
  This is not an either/or issue. S. 11, the Patients first Act of 
2003, is a responsible solution. It is a balanced approach to 
maintaining access to quality care while preserving the rights of both 
patients and providers.
  S. 11 does not cap actual damages. S. 11 caps non-economic damages 
but defers to current or future state caps. It limits punitive damages 
to two times actual damages, or $250,000, whichever is greater, but 
does not preempt existing state caps. It does not preempt State law 
with respect to compensatory or punitive damages, regardless of the 
limit.
  S. 11 limits attorney contingency fees so that awards go to victims, 
not to trial lawyers.
  No provisions in the House-passed bill or in S. 11 would limit awards 
for actual damages.
  This legislation is important to ensuring access to quality health 
care for our citizens, and retaining our healthcare workforce.
  As an example of what providers face and the impact on patients, 
consider the fact that annual medical liability insurance premiums for 
OB-GYNS range from a low of $12,000 a year in Nebraska, to a high of 
$208,000 in certain areas of Dade and Broward Counties in Florida. 
Women in rural areas have historically been particularly hard hit by 
the loss of obstetric providers.
  Practicing obstetrics is already economically marginal in rural areas 
due to sparse population, low insurance reimbursement for pregnancy 
services and growing managed care constraints. An increase in liability 
insurance rates will force rural physicians to stop delivering babies.
  This is happening now. With fewer obstetric providers, women's access 
to early prenatal care will be reduced.
  This is happening now.
  Greater availability of prenatal care over the last several decades 
has resulted in this country's lowest infant mortality rates ever.
  Providers' ability to maintain this standard will be threatened 
because the cost of insurance places a major additional strain on our 
maternal health care system.
  Dr. Daniel Rosenquist, family practitioner in Columbus, NE who has 
been in practice 16 years, has delivered babies across Nebraska. 
However, if Nebraska's medical liability cap is overturned, he may have 
to give up that part of his practice. In the months before the cap was 
finally upheld, Dr. Rosenquist had to tell his patients that he wasn't 
sure if he would be able to continue seeing them.
  Dr. Rosenquist is not alone. The Harris Interactive for Common Good 
Poll of April 11, 2002 states that 432 percent of physicians said they 
have considered leaving the medical profession because of changes 
brought about by the threat of malpractice liability.
  Because of a liability cap, Nebraska is able to recruit physicians 
into rural areas by keeping medical malpractice insurance premiums at 
the fifth lowest in the Nation. It is important to note that even with 
a cap in place, medical liability premiums in Nebraska rose 36 percent 
in 2002.
  Dr. Christopher Kent, one of four neurosurgeons in Lincoln, NE, who 
has come to view Nebraska as a great place to practice medicine, 
initially came to Nebraska to practice because of its reasonable 
medical liability structure.
  If Nebraska's cap were to be overturned, he says he would have to 
leave the State, probably within a year. One of his partners would also 
leave Nebraska and another would retire. This is equivalent to losing 
75 percent of the neurosurgeons in Lincoln, and 15 percent of the 
neurosurgeons statewide. Dr. Kent and his colleagues have already begun 
restricting their practice, and worry that they will have to restrict 
care further if the cap is overturned.
  According to a study by the Department of Health and Human Services' 
Agency for Healthcare Research and Quality, States that have enacted 
limits on non-economic damages in medical lawsuits have about 12 
percent more physicians per capita than states without such caps.
  Medical liability reform is about quality of care and access to care.
  Caps on non-economic damages help keep premiums down, and keep 
doctors in practice all over our State. S. 11 will provide security to 
States like Nebraska facing the uncertainty of legal challenges to 
existing caps, and will result in a faster, fairer, simpler medical 
liability system that protects both patients and doctors.
  The economic benefits of medical lability reform are substantial.
  CBO estimates that if legislation such as S. 11 is signed into law, 
Medicare, Medicaid and the Federal Employees Health Benefits Programs 
would save $14.9 billion in Federal spending over the next 10 years.
  State and local governments would save about $8.5 billion. State 
spending for Medicaid would decrease by $2.5 billion over that period--
again putting that money where we need it the most, where health care 
is most urgent.
  The Joint Economic Committee in a May, 2003 report, estimates an 
additional $16.7 billion will be saved over 10 years due to reductions 
in the practice of defensive medicine. According to a July 2002 Health 
and Human Services report, States with reasonable caps on noneconomic 
damages saw premium increases of 12 to 15 percent in 2002 compared to 
44 percent in States without caps on noneconomic damages.
  Dr. Daniel Kessler, a professor at the Stanford Business School, and 
Dr. Mark McClellan, a former Stanford University economist who is 
currently FDA Commissioner, in a February 2000 study, looked at 
spending cuts after tort reform, beyond claim payouts and insurer 
expenses.
  They concluded that States adopting direct reforms exhibited 
reductions in hospital expenditures of 5 percent to 9 percent, but this 
did not result in higher patient mortality rates or an increase in 
serious medical complications.
  If these savings were generalized to all medical spending, a $50 
billion reduction in national health spending could be achieved through 
such reforms, in addition to that sense of confidence that would be 
increased across America because these dollars would be focused in 
areas that need the health care the most--productive uses for $50 
billion.
  I am proud to be an original cosponsor of this responsible 
legislation, S. 11, the Patients First Act of 2003. I urge my 
colleagues to give it serious consideration and support S. 11.
  Thank you and I yield the floor.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Illinois.
  Mr. DURBIN. Madam President, I thank my colleagues on the other side 
of the aisle and on the other side of this issue for coming to the 
floor because I hope the tone we have set in this debate indicates that 
regardless of which side of the aisle you are on, regardless of which 
side of the bill you are on, we understand that we are facing a 
national challenge.

[[Page 17093]]

  There is entirely too much medical malpractice in our country today. 
The best doctors concede that. However, the insurance that is being 
charged to even good doctors is too unreasonable in many areas, 
depending on the specialty and where they choose to live. Frankly, 
there are a lot of people who will suffer if we don't do something 
about that. Obviously, the doctors themselves who have dedicated their 
lives to the medical profession want to see some solution to this. I do 
as well. But the patients who are served by them are also looking for 
us to do something constructive and positive to make certain that 
quality health care is available across America.
  I don't personally believe S. 11 is up to that challenge. I am not 
even certain it is a step in the right direction. There has been 
lengthy debate about whether or not putting a limitation on the amount 
that can be awarded to a person who has been a victim of medical 
malpractice is going to bring down malpractice insurance premiums.
  This bill, S. 11, suggests that rather than giving that decision to a 
jury--whether it is in Rhode Island or Illinois or Nebraska--that 
decision on how much an injured patient should receive will be made by 
a jury of 100 U.S. Senators. We will pass a bill that says: Regardless 
of what has happened to you, what happens to your family as a result of 
medical negligence and medical malpractice, you will be unable to 
recover anything more than $250,000 for your pain and suffering. Oh, 
yes, they will pay the medical bills. And if you have lost wages, those 
will be paid, too. But when it comes to pain and suffering, regardless 
of whether you are 6 years old, 60, or 96, there will be a limitation 
of $250,000 which can come your way.
  Now, $250,000 in the abstract sounds like a large sum of money--until 
you sit down and consider the cases, the actual people who have been 
affected by medical malpractice.
  In a few moments, I am going to talk about a number of them, some of 
whom I met for the first time today. When you hear their stories, I 
hope those who are following the debate will step back for a second and 
say: Wait a minute--as I have--is this right for the Senate, for those 
of us elected from 50 States across the Nation, to decide in each and 
every case what the maximum recovery will be for medical malpractice 
injuries? I think the answer is clearly no. That is why I am 
encouraging my colleagues to vote against the cloture motion, which is 
a motion which tries to bring this bill before the Senate.
  What I believe--and others, I think, share this belief--is that we 
have a national challenge and a problem when it comes to medical 
malpractice. But it is a problem that will not be resolved until we 
deal with it responsibly and completely, until we look at all the 
facets of the problem.
  This bill says it comes down to one thing: Injured victims of medical 
malpractice are recovering too much money for their injuries. If we can 
limit the amount of money they recover, then the system is going to be 
so much better.
  I think that oversimplifies it. In fact, I think it really is an 
abuse of the situation rather than an effort to rectify it. That is why 
I am opposing it.
  We had testimony a few weeks ago from the Bush administration, a 
doctor from the Department of Health and Human Services, saying that 
medical malpractice in America has reached epidemic proportions--
epidemic proportions. There are those who estimate that as many as 
100,000 Americans lose their lives each year because of medical 
malpractice--not because they are destined to die because of God's 
choice but, rather, because someone has made a very serious and fatal 
mistake in their medical treatment--100,000 a year.
  We also have studies that have come out from Harvard University that 
suggest that only 1 out of every 50 cases of medical malpractice ends 
up in a lawyer's office with a claim against a doctor or hospital--1 
out of 50. So I say to those who support this bill, if you do not look 
at the underlying incidence of medical malpractice in this country, 
simply limiting the amount that an injured person can recover is no 
guarantee you will not face an avalanche of cases coming at you for 
medical malpractice. We have to go to the underlying issues in how to 
deal with it.
  It is interesting to me, as well, how many elements are being 
overlooked during the course of this debate. All the debate on the 
floor has been about doctors: States that do not have doctors, 
communities that do not have obstetricians to deliver babies, red maps 
brought before us to show State after State where doctors are facing 
problems.
  But read this bill. This bill isn't just about doctors. This bill is 
about protecting HMOs, managed care insurance companies, pharmaceutical 
companies, medical device companies, and nursing homes. So in all of 
this debate about the sad situations many doctors do face in America, 
no one has come to the floor to justify why, within this bill, there is 
protection for these special interests: HMOs, managed care insurance 
companies, which many times make decisions which can be as lethal and 
fatal as any decision made by any doctor.
  I think most Americans know of what I am speaking. When an HMO that 
you are a part of or a managed care insurance company that your family 
is a part of makes a decision as to whether or not they will pay for a 
diagnostic test, a laboratory procedure, your hospitalization, or a 
surgery, when they decide how many days you can stay in the hospital, 
they are, in fact, dictating medical care in the name of profitability. 
They want to make more money. They would like to keep you out of the 
hospital as much as possible, reduce your costs as much as possible, 
and they make medical decisions.
  It is interesting that today a report came out. It is a report that 
was published by Health Affairs, and those who prepared it are people 
from the American Medical Association based in Chicago: Matthew Wynia, 
Jonathan VanGeest, Deborah Cummins, and Ira Wilson. This report is 
entitled ``Do Physicians Not Offer Useful Services Because Of Coverage 
Restrictions?''
  They surveyed doctors across America and asked them the question: How 
often have you decided not to offer a useful service to a patient 
because of health plan rules?
  I have talked to doctors who have told me many times that is 
happening more often than they would like to admit.
  Let me show you a chart which tells you what they found in asking 
doctors across America that question. They were asked this question: 
How often have you, as a doctor, decided not to offer a useful service 
to a patient because of health plan rules, insurance rules? In this 
case, ``very often,'' 2 percent; ``often,'' 6 percent; ``sometimes,'' 
23 percent; ``rarely,'' 27 percent. Even if you take the ``very 
often,'' ``often,'' and ``sometimes,'' you have 31 percent of the 
cases. Almost a third of the time doctors are saying they are making 
decisions not to provide a useful service to a patient because the 
health insurance company tells them they will not pay for it and they 
cannot do it.
  Now, that isn't part of this debate. No one has brought into this 
conversation the question as to whether or not HMOs, in the way they 
are treating doctors, are having some impact on medical malpractice and 
injuries to patients. No. What we are doing for HMOs is not holding 
them accountable but, rather, saying we are going to give them even 
more privileges under law. We are going to insulate them from the 
liability of these bad decisions. So the insurance companies, 
particularly the HMOs, are running rampant across the Senate when it 
comes to malpractice instead of being held accountable, as they should 
be, for their restrictions on good doctors making sound medical 
decisions.
  This is another question asked of these doctors in this Health 
Affairs study that came out today: If ``sometimes'' or ``more often'' 
you decide not to offer a useful service because the insurance company 
tells you you can't, are you doing so more often, less often, or about 
as often as you were 5 years ago? Most of them say unchanged: 55 
percent. But 35 percent say ``more often.''

[[Page 17094]]

  So you have doctors who are increasingly finding insurance companies 
making decisions on what you, your mother and father, your wife or 
husband or child is going to receive in terms of medical care. Is that 
the answer to this issue, that we are going to say that HMOs will make 
these decisions, and when they are wrong, and people are injured, and 
these poor people then turn to a court and ask for some compensation 
for their injury, they will be limited not only in what they can 
recover from the doctor or the hospital but even the HMO insurance 
company? That is what this bill says. That is what this bill is 
designed to do: to insulate from liability even HMO insurance companies 
which are responsible for more and more doctors making medical 
decisions which they believe, based on their training and experience, 
are not the right decisions for their patients. I do not think that is 
fair. I do not think it treats people as they should be treated.
  Let me mention a couple other items. We have a nursing shortage in 
America. It worries me. I am reaching an age when I am thinking about 
the day when I want to punch a button at a hospital or some other place 
to call a nurse and hope that someone shows up. But the likelihood that 
is going to occur is diminishing because we have a nursing shortage, 
and it is a serious shortage.
  As America's population ages, we need more nurses to take care of us 
in convalescent homes and nursing homes and hospitals and other places. 
Sadly, those nurses are not as plentiful as they once were.
  Let me tell you about a report from the Journal of the American 
Medical Association that relates to the issue of malpractice and the 
shortage of nurses. This is a report from October of 2002 from the 
Journal of the American Medical Association. They published the results 
of a study that, for the first time, showed that the number of patients 
who die in the hospital increases when nurses are assigned to care for 
too many patients. An estimated 20,000 people die each year in 
hospitals from medical mistakes attributed to nurses caring for more 
patients than they can handle.
  This accounts for 20 percent of the nearly 100,000 deaths annually 
from medical mistakes. While a link between nurse staffing and quality 
of care seems like common sense, many hospitals downplayed the link 
until the study was published.
  This is a troubling report as well. I read from a book entitled ``The 
Wall of Silence,'' written by Rosemary Gibson and Janardan Singh. This 
is a quote from the book:

       Experienced nurses as well as newly-minted nurses are 
     leaving patient care at the bedside at a time when other job 
     opportunities exist. Their knowledge and skills are valued in 
     pharmaceutical companies, managed care organizations and 
     information technology firms. How many are leaving? It is 
     hard to say precisely. The Federal Government's Bureau of 
     Health Professions issued a report showing that about 50,000 
     fewer nurses were using their licenses in 2000, as compared 
     with 1996.

  As our population ages, as the demand for nurses increases, the 
number of nurses in America diminishes. We have seen that when there 
are fewer nurses in a hospital, there is more likelihood of medical 
mistakes, medical malpractice, and medical injuries. Has that even been 
mentioned in the course of this debate? Has anyone talked about the 
HMOs and their impact on medical practice? Has anyone talked about the 
shortage of nurses and the fact that it is leading to more medical 
mistakes, leading to more lawsuits filed against doctors and hospitals. 
Instead what we have had in this debate is a strict debate, limited to 
the question of how much injured parties can recover once they face 
medical malpractice, once the injuries have occurred.
  I would like to introduce in the debate now some real-life stories 
about people who have been victims of medical malpractice. As I 
mentioned earlier, some of them were kind enough to join Senator 
Lindsey Graham and myself earlier this morning when we held a press 
conference and introduced our version of a bill which we think is a 
more reasonable approach to dealing with the medical malpractice 
challenge we face in America.
  The first person is Colin Gourley. Colin is on your left as you view 
this picture here in the striped shirt. This is his twin brother 
Connor. Nine-year-old Colin Gourley, from the State of Nebraska, 
suffered a terrible complication at birth as a result of a doctor's 
negligence. Colin has cerebral palsy. He cannot walk. He could not 
speak until he was 5 years old. He has irregular brain waves and the 
amount of time he has spent in a wheelchair has affected his bone 
growth. He has had five different surgeries, and he needs to sleep in a 
cast every night to prevent further orthopedic problems. His twin 
brother Connor survived birth without any injury.
  A jury ruled that Colin was a victim of medical negligence. They 
decided that because of that medical negligence the Gourley family was 
entitled to receive $5.6 million. That was what was needed to 
compensate him for his medical care and for the lifetime of suffering 
and problems which he will face. Last month, the Nebraska Supreme Court 
upheld a Nebraska law that severely cut this jury verdict to about one-
fourth of the award. As a result, Colin will have to rely on the State 
of Nebraska and the Federal Government for assistance for the rest of 
his life.
  The jury understood what the case was worth. The jury got to meet 
Colin, his brother, his two sisters, and mom and dad. The jury heard 
what happened that led to this terrible medical malpractice, and the 
jury decided in fairness that he and his family were entitled to $5.6 
million. Yet the law came in and said: I am sorry. We have to limit 
you--a law similar to the one we are considering in the Senate this 
evening, a law which will say no jury in Nebraska nor Illinois nor 
North Carolina is going to make that decision. This decision will be 
made by a jury of 100 United States Senators, and we will decide, in 
the case of Colin, that no matter what his life may be, whether it is 
5, 10, 20, 50, or 80 years, the maximum amount we will pay for his pain 
and suffering is $250,000.
  What may have sounded like a large amount of money at the beginning 
of this conversation, as we understand as we consider each and every 
case, becomes an amount which is hardly adequate to take care of what 
Colin is going to face, as well as his family.
  Let me introduce you now to Kim Jones. This is a picture taken before 
Kim's medical malpractice. As you can see, she is a lovely, proud 
mother from King County, WA. She was 30 years old and she remains 
severely brain damaged and in a comatose state today after undergoing 
routine tubal ligation surgery following childbirth at the Washington 
State Medical Center. After the operation, the hospital staff failed to 
notice that Kim had stopped breathing since her vital monitors had been 
improperly removed. Though successfully resuscitated, Kim suffered 
multiple seizures and was given seizure control medication that 
actually worsened her condition. She was later taken by helicopter to 
another medical facility.
  Today Kim is unable to control her bodily functions. She has no 
discernable mental function and is being cared for at a convalescent 
center. Kim's father filed a lawsuit against the hospital and the 
anesthesiologist. The case is still pending.
  Kim is standing there at a better time before the medical injury with 
her daughter. Now she is in a nursing home or convalescent home for the 
rest of her natural life. What is it worth? After the medical bills are 
paid, after her lost income is paid, what is it worth to her, to her 
daughter, to her parents? According to this bill, we know exactly what 
it is worth. It is worth no more than $250,000 for the pain and 
suffering she will endure for the rest of her life.
  Now let me introduce you to a young lady who made quite an impact on 
us this morning. She told her terrible story. This is Sherry Keller 
from Conyers, GA. Sherry is shown in her wheelchair. That is where she 
was today when she came to speak to us. She stood up and said: I am 
from Conyers, GA, and I am a registered Republican. I want to make that 
clear.

[[Page 17095]]

  I said: We have Republicans and Democrats and Independents. Then she 
told her story.
  Sherry Keller received a complete hysterectomy. Her surgeon relied 
upon staples rather than sutures to hold her incision closed. Upon 
having the staples removed, Sherry's incision began to bleed. The 
surgeon began cleansing the wound. Unfortunately, the incision opened. 
I won't go into the graphic details. But the doctor in that situation--
this happened at the doctor's office--apparently panicked and left her 
alone in the room for 35 minutes when the doctor went to call a wound 
specialist. She left her lying on an examination table. The doctor 
continued to see other patients while the specialist was on the way and 
left Sherry in that examining room for 35 minutes. Sherry went into 
shock from loss of blood, lost consciousness, and fell off the exam 
table. There was no one with her. Her head hit the counter as she fell. 
She came to but in the process damaged her spinal cord and rendered her 
an incomplete quadriplegic. She dragged herself out in that condition 
into the hallway to get the attention of a nurse or doctor to come to 
her aid. The doctor called for an ambulance but gave directions that 
she should be transported only. She, the doctor, left instructions that 
a doctor would go to the emergency room to dress the wound later.
  Sherry was then left in the emergency room for 2\1/2\ hours waiting 
for a doctor to treat her wound. As a result of that fall in the 
office, Sherry will never walk again. As she was not employed outside 
the home, she has no lost income for her injury. Her damages were 
virtually all medical bills and pain and suffering. Here she is, a 
woman, some 35 years of age, who faces a lifetime in a wheelchair now 
because of malpractice.
  This law we are considering would pay her medical bills but say that 
the total amount of compensation for her for the pain and suffering she 
and her family will go through is limited to $250,000. Some Senators as 
jurors have decided that in her case $250,000 is adequate, thank you.
  I think a jury has a right to consider that case. A jury has a right 
to consider whether that doctor is guilty of malpractice and whether 
this woman and her family are entitled to more than $250,000. The fact 
that she was at home raising her children, because of this bill, will 
be used against her. She has no job where she earns a paycheck, but she 
has a real job as far as America is concerned; she was raising her 
family.
  And now look at this situation. This bill will actually penalize her 
for being a stay-at-home mother with her family. For a Senate that is 
supposed to be dedicated to family values, it is hard to understand how 
Sherry's case tells that story.
  The next person I would like you to meet is Evelyn Babb of Tyler, TX. 
This case is similar to many you may have read about. She is a bright, 
happy-looking person in this picture. She needed arthroscopic surgery 
on her right knee for a torn lateral meniscus. Her doctor marked her 
right knee to be operated on with an X. However, the hospital staff 
negligently prepared her left knee for surgery. Without verifying 
whether the staff had properly prepared the patient, the doctor 
proceeded to operate on the knee which the staff had prepared. He began 
performing the partial lateral meniscectomy before he realized he was 
operating on the wrong knee. The staff then prepared the other knee, 
and the doctor performed the operation as previously planned.
  Due to the unnecessary surgery on the one knee, Mrs. Babb's recovery 
was considerably longer and more painful than it would have been. She 
has severe pain and swelling in her left knee and a lingering 
infection. She continues to suffer from pain, has difficulty walking, 
and has a markedly decreased range of motion in her knee.
  As an elderly woman of 75, Mrs. Babb will suffer no loss of income, 
however, and there will be few, if any, additional medical expenses 
because there is nothing that could be done to improve her condition. 
Virtually all of the damages she could recover for this obvious 
malpractice would relate to the pain and suffering she would endure. 
This bill has decided how much her case is worth: no more than 
$250,000, period.
  When you look at that situation, a person who is retired, with no 
active income, and with limited medical bills, but a serious medical 
outcome, it is an indication of the unfairness of this underlying bill.
  This case I will tell you about now involves Heather Lewinsky from 
Pittsburgh, PA. Seventeen-year-old Heather Lewinsky's face remains 
scarred for life after a Pittsburgh plastic surgeon performed radical 
surgery to correct a skin disorder near the left corner of her mouth 
when she was 8 years old.
  The doctor claimed to have done this procedure on children many times 
before when, in fact, neither he nor any doctor in the United States 
had ever done the surgery to treat a condition such as Heather's. 
Following the operation, Heather was left with horrific facial scarring 
and a terrible stroke-like tugging at the corner of her mouth.
  The doctor attempted to fix the problem with two additional 
surgeries, which made it even worse, forcing her to undergo 10 more 
operations with other doctors between the third and tenth grades.
  The pain, swelling, and recuperation with each procedure were 
excruciating. Heather and her family filed a lawsuit against the doctor 
who only paid a small fraction of the jury verdict because he had 
insufficient insurance coverage.
  This is an indication of a young lady who is scarred for the rest of 
her life. What is permanent disfigurement worth if it is the result of 
medical malpractice? A point will be reached when no more surgeries 
will be indicated; they won't add much to her improvement. She may not 
have lost wages, but she is scarred for life. As far as this bill is 
concerned, permanent disfigurement because of medical malpractice is 
worth $250,000, not one penny more.
  The last case I want to talk to you about is a case that involves 
Alan Cronin of California. In the year 2000, Alan Cronin, then 42 years 
old, went into the hospital for a routine hernia surgery. Alan was 
married with three children at the time--two of them still at home. He 
goes in for a routine hernia surgery. After the surgery, two doctors 
failed to diagnose an acute infection following the routine hernia 
repair. The doctors treated him as though he had the flu rather than 
inspecting the surgery site. He became septic and suffered toxic shock. 
Once the doctors finally opened the surgery site, the pus and sepsis 
were so overwhelming that they told Alan's family that he had a 98-
percent chance of dying. Gangrene had set in and all of Alan's limbs 
were amputated. When he awoke from his coma, he no longer had arms or 
legs.
  Alan was a customer service representative for a medical equipment 
manufacturer. Workers' compensation paid for all of his medical bills, 
including future expenses. He also had a private disability policy that 
was used as an offset against future economic damages.
  In speaking with Alan about the cap on noneconomic damages, he says 
that there are so many things that you don't think of as necessities, 
and $250,000 could not begin to cover those expenses. Alan, 42 years 
old, has had the amputation of his arms and legs from medical 
malpractice. How much is the suffering and pain that he will endure in 
the next 30, 40 years of his life worth? We know in the Senate. It is 
worth $250,000 and not one penny more.
  Incidentally, there is another provision in the bill. Because Alan 
had the foresight to work for a company that provided him with health 
insurance that covered some of his medical bills after the medical 
malpractice, and because he also had a private disability policy that 
will help him with some of his expenses as he tries to struggle through 
rehabilitation and rebuilding his life, that information, according to 
the bill, should be brought up in the trial. As a former trial lawyer, 
I can tell you it is being brought out so as to encourage the jury to 
diminish any award they are going to give to Alan Cronin. Because he 
had the foresight to

[[Page 17096]]

pay for health insurance and a private disability policy, he would be 
penalized in a court of law by the disclosure of this insurance and 
this disability policy.
  That isn't done today in any court in America, but it would be done 
under this bill. S. 11 has decided that is a fair way to deal with 
medical malpractice. I think most Americans would disagree. What they 
believe is, if you put a cap or limit on the recovery of a person who 
is a victim of medical malpractice, the malpractice insurance premiums 
may come down. They hope if they come down, the threat to the lifestyle 
and future careers of doctors is going to be diminished. Yet when you 
look at the studies--the Weiss study, for example--you find the 
opposite is true.
  States with limitations on what can be recovered in court had a 
higher percentage increase in malpractice premiums between 1991 to 2001 
than States without caps. So not only is this proposal in S. 11 
fundamentally unfair, it is totally ineffective. What we are doing is 
seeing, frankly, this battle between the White House and the people who 
are gearing up for some Presidential campaign and the American trial 
lawyers. That is what this is about. It is not about malpractice 
premiums, bringing them down. It is not about the incidence of 
malpractice and reducing it. Frankly, it is about a political battle 
which should be secondary to the more important issues before us.
  S. 11, as it has been brought to us today, is a bill against which I 
have led the fight. I am sorry I have to do it in one respect, but I am 
proud to do it in another. I am sorry because this should not be the 
bill we are considering. We ought to be coming before the American 
people with a bill that addresses this problem in its entirety and in a 
fair way. We ought to bring into this conversation medical providers 
across America. We should sit down and have an honest and open 
conversation about how to reduce medical injuries and medical errors. 
That would be good for everyone. I am sure doctors could tell us ways 
to do that.
  Let me give you an example of what we have tried to do in the past. 
We decided at one point that we would create a national registry to try 
to find out how often we have these incidents of problems. With that 
national data bank, we would say to hospitals that before you hire a 
doctor on your staff, you can check to see whether he has had his 
license suspended or has been sued successfully for malpractice. In the 
1980s, we established that--my colleague, Ron Wyden from Oregon, was 
then a Congressman who proposed the legislation. He thought if this 
data bank were present, we could find the limited number of doctors who 
are most responsible for malpractice and make certain that they either 
change their ways or get out of the practice of medicine. It was 
certainly a good idea.
  Sadly, there haven't been many people who have used it. Consider this 
fact:

       The data bank is an effective information tool only if 
     hospitals and other health organizations actually report 
     adverse actions involving a health care professional. Federal 
     law requires this information to be reported. But hospitals 
     are not complying. Since the data bank was established, more 
     than 60 percent of hospitals have never reported any adverse 
     action [against a doctor that occurred on the premises.] It 
     was expected that hospitals would report more than 1,000 
     disciplinary actions every month, yet fewer than 1,000 are 
     reported in a year.

  Managed care organizations, which are protected by this bill from 
liability--the HMOs and managed care organizations which, again, 
receive preferred treatment by the Senate under this bill--are not 
doing much better.

       From September 1, 1990, to September 30, 1999, [the managed 
     care organizations in America] reported only 715 adverse 
     events to the data bank. Eighty-four percent of them have 
     never reported any adverse action. The investigative arm of 
     the Federal Department of Health and Human Services, the 
     Office of the Inspector General, notes that ``with close to 
     100 million individuals enrolled in [managed care 
     organizations and HMOs] and hundreds of thousands of 
     physicians and dentists associated with them, fewer than a 
     thousand adverse action reports over nearly a decade of 
     service, for all practical purposes, are reported.

  So the efforts we put in place to track medical malpractice, to try 
to weed out the bad actors, to try to take the doctors away who perform 
some of these acts of malpractice have been in vain.
  Hospitals, HMOs, managed care organizations, have refused to report 
the bad actors. Yet our answer on how to deal with that situation is S. 
11. We are going to limit the amount of money victims can recover. Is 
this totally upside down?
  Should we not start with the premise that we want to limit the amount 
of malpractice itself and medical error in America and then follow 
through to the next and obvious question: When doctors are going to buy 
insurance, how can we help them secure reasonably priced malpractice 
insurance policies? That, of course, would mean bringing in the 
malpractice insurance companies and reinsurance companies.
  Incidentally, there is one thing I said yesterday that we are going 
to look into. It was my understanding from reports we received that 
there were five reinsurance companies available to U.S. insurers. A 
call today to the Illinois State Medical Society said they work with 9 
or 10. I want to make sure the record is corrected and reflects the 
fact that at least we are trying to come to the right number of 
reinsurance companies. Regardless of whether it is 5 or 50, the 
reinsurance companies have to be part of this conversation as to how we 
are going to reduce the cost of malpractice insurance for doctors and 
hospitals across America.
  The third point, and equally important, and I speak to this one as a 
former trial lawyer myself, is that the legal profession has to be part 
of this conversation. We have to say those lawyers who would consider 
filing a frivolous lawsuit are going to face severe penalties. They 
will have to pay compensation of cost and fees associated with those 
cases, and if, in fact, they are found to have done it repeatedly, we 
can prohibit them from that field of practice completely.
  I add, based on my personal experience, it would take an absolute 
fool as a lawyer to entertain a medical malpractice case that really 
did not have a chance of success and that could be considered 
frivolous. Those cases in my State of Illinois are extremely expensive. 
You start with a certification by a doctor that you actually have a 
justifiable cause of action before you file your complaint. An 
important consideration in taking these cases up is whether or not you 
can move them forward to recover for the plaintiff who is injured. If 
you do not think you have a chance, you have to tell that sad news to 
the client who sits in your office, and I have done that.
  Frankly, you have to honestly tell many people who are seriously 
injured: I do not think you have a case on which you can recover.
  We have to bring together, if we are serious about medical 
malpractice, the doctors who can speak for their profession, nurses who 
can help us understand how we can bring more medical professionals to 
the job to reduce the likelihood of medical injuries, HMO insurance 
companies that have to be told they can no longer dictate sound medical 
practice, where doctors are told what they have to do regardless of 
whether they think it is right professionally. We have to bring in the 
insurance companies to make certain the rates they charge are 
reasonable, and lawyers have to be brought in as well so they are 
involved in responsible conduct which is focused more than anything 
else on recovery for the patient or claimant involved. That is what 
this is about.
  The idea that by limiting recovery for the victims we have talked 
about here is going to solve the problem just will not work.
  Let me use this chart as an illustration as well. Here are two States 
in the Midwest: One I am very familiar with, my State of Illinois, and 
a neighboring State, Michigan. They are comparable States in makeup of 
the population in rural areas and urban areas. They are big States by 
most standards.
  Michigan has caps and limitations on how much a person can recover in 
court. Illinois does not. Here we take a

[[Page 17097]]

look at the professional liability insurance that is being paid in 
these two States as of October of last year. We will see in the State 
of Michigan, OB/GYNs on average are paying more than in the State of 
Illinois that does not have caps. With surgery, it is the same story. 
With internal medicine, it is the same story. Michigan, with caps, has 
higher medical malpractice insurance rates than the State of Illinois 
without caps.
  The belief that in passing this bill and establishing caps across 
America we are going to bring down malpractice insurance premiums I do 
not think is a reasonable conclusion, which is borne out by the 
evidence presented here, and this comes from an analysis of the medical 
liability monitor data, the same monitor data used by both sides of the 
debate.
  I understand the Senator from Utah is here and would like to speak. I 
close at this point by saying what I said at the outset, and I repeat 
today, I value very much the medical profession. They have meant so 
much to me and my family. I have entrusted the care of my greatest 
treasures on Earth--my wife and children--to great doctors, and I thank 
God they were there when we needed them.
  I want them to continue in practice. I want them to feel good about 
what they do for a living. I do not want them looking over the 
shoulders at lawyers who are filing frivolous lawsuits. I do not want 
them facing 35-percent increases in malpractice premiums they cannot 
cope with, that they cannot pass on to patients, that force them to 
make decisions that, frankly, are not in the best interest of good 
medicine.
  Today, during the course of our press conference with these victims 
of medical malpractice, one of the staff in the back of the room 
fainted. When he fainted, we stopped everything and somebody said: Call 
a doctor. How many times have we heard that said? We say it because we 
all know in those dire emergency situations and in everyday situations, 
we need the medical profession.
  I said at the outset of this debate, and I repeat, I stand ready to 
sit down with anyone in good faith who wants to deal with the medical 
malpractice crisis facing America. Let us deal with this in its 
entirety and in an honest fashion. Let us ask everyone to make a 
sacrifice--the doctors, the lawyers, and the insurance companies--and 
then I think we can come up with a bill that is worthy of the Senate.
  For us to deliberately limit the amount of money available to these 
victims with tragic stories, which I have brought to the Senate today, 
is fundamentally unfair. It is as unfair to those victims as those 
malpractice premiums are unfair to many of the doctors who are paying 
them today.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I rise to speak about the medical 
liability and medical crisis threatening our great Nation. Over the 
years, I have pressed for legislation to protect our health care 
delivery system from the ravages of an out-of-control medical liability 
system.
  Many times we have come close to enacting legislation, and a giant 
opportunity stands before us today. I hope we do not let it slip 
through our fingers once more.
  I remember as a young lawyer in the early days of my practice in 
Pittsburgh, PA, the law basically was, if you met the standard of 
practice in the community, there was no case because everybody knew 
that medical science is not an exact science. Once they adopted the 
doctrine of informed consent in its various forms, it meant that every 
case goes to the jury, regardless; every case that has a bad result, 
even though the doctor did everything in his or her power to effectuate 
a decent result. And we have had this medical liability catastrophe 
upon our hands ever since.
  I can remember as a defense lawyer, my advice to some doctors was 
that they needed to do everything they possibly could to make sure 
there was absolutely no way they overlooked anything with regard to any 
person's complaint. If a person came in to them with a common cold, 
they could no longer say: Take two aspirin every 6 hours, drink all the 
liquids you can, and in 7 days you will be better. Or: Don't do 
anything and in 7 days you will be better. No, they have to give 
vascular and respiratory examinations, blood tests, et cetera. As a 
result, what used to be a $5 bill in those days, or at most $15 or $20, 
is far more today. Of course, I believe unnecessary defensive medicine 
such as that has driven our country to its knees from a medical 
liability standpoint.
  Today, defensive medicine increases health care costs by $60 to $108 
billion per year according to the Department of Health and Human 
Services report of last year.
  As I have noted previously, out-of-control medical liability 
litigation is needlessly increasing the cost and decreasing the quality 
of health care for every American. It is preventing patients from 
accessing high-quality health care or, in some cases, any care at all 
because doctors are being driven out of practice.
  I was pleased that President Bush announced his desire to address 
medical liability legislation reform last summer when he spoke of the 
need for reform in his State of the Union Address and when he called on 
us to pass meaningful medical liability reform legislation in this 
Congress. I am pleased that our majority leader, Dr. Frist, has brought 
the Patients First Act forward to be debated today.
  Our colleagues, Senator Ensign from Nevada, who introduced this bill, 
and Senator McConnell from Kentucky, deserve special recognition and 
thanks for their work on this bill as well.
  Of course, this was not the first time we have addressed this issue. 
As many of us will recall, we passed medical litigation relief language 
with the Commonsense Product Liability and Legal Reform Act in 1995. 
Unfortunately, it was stripped from that bill in conference.
  I am sorely disappointed that in the ensuing 8 years we have not 
addressed this problem. As a result, the problem has continued to 
fester like an infection that will not heal. Worse yet, this infection 
is spreading to all parts of our country.
  This map which has been utilized throughout this debate, and I think 
properly so, with data supplied by the American Medical Association, 
shows the States that currently are experiencing a medical liability 
crisis and those that are showing signs of a developing crisis. The 19 
red States are crisis States. Nineteen of the 50 States are crisis 
States. The 26 yellow States are showing problem signs. Only 5 States 
are currently OK. The red ones are in crisis. The yellow ones are about 
to be in crisis. The white States are currently OK generally because 
they have passed medical liability litigation reform legislation like 
S. 11.
  To contrast this for my colleagues, I must note that on a map with 
last year's data, only 12 States were in crisis. In March, it was up to 
18. Now it is 19. The problem is growing and it reaches from coast to 
coast.
  There are very unfortunate consequences to this crisis--doctors 
forced to quit practicing, trauma centers closing, babies being born by 
the roadside, and, yes, people dying. These are all due to out-of-
control litigation and soaring medical liability insurance premiums.
  The crisis is particularly acute in the farming and ranching 
communities of rural America where obstetricians and family 
practitioners, some of whom have been delivering babies for 25 years, 
are quitting their obstetrical practice. As a result, there is an 
increased shortage of obstetricians in the rural west, including in my 
home State of Utah.
  Studies by both the Utah Medical Association and the Utah chapter of 
the American College of Obstetricians and Gynecologists underscore the 
problem. According to the Utah Medical Association:

       50.5 percent of family practitioners in Utah have already 
     given up obstetrical services or never practiced obstetrics. 
     Of the remaining 49.5 percent who still deliver babies, 32.7 
     percent say they plan to stop providing OB services within 
     the next decade. Most plan to stop within the next five 
     years.


[[Page 17098]]


  The Utah study examined the causes of the crisis also:

       Professional liability concerns were given as the chief 
     contributing factor in the decision to discontinue 
     obstetrical services. Such concerns include the cost of 
     liability insurance premiums, the hassles and costs involved 
     in defending against obstetrical lawsuits and a general fear 
     of being sued in today's litigious environment.

  Although many blame out-of-control litigation, others believe that 
the downturn in the economy caused the crisis. In an attempt to 
identify the cause, in February Senator Gregg and I held a joint 
hearing of the HELP and Judiciary Committees. We heard from a lawyer 
who believes the downturn in the economy and problems with State 
insurance regulations are responsible. But, in addition, we heard from 
the Texas State insurance commissioner and from the president of 
Physician Insurance Association of America, representing provider-owned 
or operated insurance companies that provide insurance for the majority 
of American doctors.
  One reason they do is not because the insurance companies are so 
awful. It is because the insurance companies will not handle this type 
of coverage any more. The reason they will not is because of the 
exposures they are facing. So they have turned now to provider-owner 
and operated insurance companies.
  These gentlemen face this crisis and its consequences every day. 
Their data and their studies, as well as those from the Department of 
Health and Human Services, show that increasingly frequent frivolous 
lawsuits and skyrocketing awards are responsible for rapidly rising 
premiums.
  Have the recent downturns in the economy and the stock market 
affected medical liability premiums? Possibly. But this does not appear 
to be a major cause of the current crisis.
  Look at this chart. This is a chart showing how insurance companies 
that offer medical liability coverage allocate their assets. As this 
chart shows, between 1997 and the year 2001, insurance companies 
invested conservatively, primarily in bonds--that is corporate in red, 
Government in green, which is the middle line, and municipal bonds in 
purple. A minority of funds, only about 10 percent, happens to be 
invested in equities, which is shown in the yellow.
  This conservative investment strategy minimizes the effect that 
changes in the stock market have on insurance premiums. In fact, there 
is good evidence that increasing medical liability awards are 
responsible for increasing premium costs.
  This pie chart with data from the Physicians Insurance Association of 
America shows the outcome of medical liability cases. The area in the 
orange, almost 68 percent of the pie, represents medical liability 
cases that were dropped or dismissed. In other words, a vast majority 
of cases are frivolous to begin with. In those cases, the plaintiff 
received no award because no harm was found. Yet these frivolous 
lawsuits cost money, an average of at least $25,000 per case, and those 
costs increase the costs of medical liability insurance.
  This next chart shows the growth in median--that is the blue line and 
the average in red--medical liability claim payments between 1989 and 
the year 2001. Prior to 1995, median and average claim payments 
increased readily, as we can see. But the rate of growth for both 
increased dramatically after 1995.
  Finally, this next chart shows the growth in million dollar ``mega 
verdicts'' claim payments equal to or greater than $1 million between 
1985 and 2001.
  In 1985, less than 1 percent of all awards exceeded $1 million. In 
2001, over 8 percent of awards were $1 million or higher. The data is 
very clear. A high percentage of medical liability claims are 
frivolous. Average and median claim payments are increasing rapidly and 
the percentage of mega awards, those greater than $1 million, increased 
dramatically as shown on this particular chart.
  It seems clear to me that out-of-control medical liability litigation 
is driving the increase in premiums, not the economy and not a problem 
with the insurance industry which some would try to make it. It is not 
just the doctors but all Americans who are paying the price. This is a 
national problem and one that requires a national solution.
  In my letter of March 12 to Budget Committee Chairman Nickles and 
Ranking Democrat Conrad, I emphasized the important implications of 
medical liability litigation on the Federal budget. In that letter, I 
wrote:

       The Federal Government pays directly for health care for 
     members of the armed forces, veterans, and patients served in 
     the Indian Health Service. The Federal Government provides 
     reimbursement for the Medicare and Medicaid programs. 
     According to the Department of Health and Human Services' 
     March 3, 2003, report . . . the Federal Government spends 
     $33.7 billion-$56.2 billion per year for malpractice coverage 
     and the costs of defensive medicine.

  That is $33.7 billion to $56.2 billion a year just for malpractice 
coverage in these areas of Federal Government medicine.
  That report states:

       reasonable limits on noneconomic damages would reduce the 
     amount of taxpayers' money the Federal Government spends by 
     $28.1 billion to $50.6 billion per year.

  Now I continued to write:

       In my view, Federal legislation that would decrease costly 
     frivolous medical liability lawsuits and limit awards for 
     noneconomic damages is necessary, not only to ensure patient 
     access to health care, but to curb increasing Federal health 
     care costs. Because of the substantial and important 
     budgetary implications, particularly to the Medicare and 
     Medicaid Programs, we request that the budget resolution 
     include language calling for medical liability legislation 
     reform.

  I am pleased to report the budget resolution we passed in the Senate 
recognized the tremendous impact of medical liability costs. The budget 
resolution included $11.3 billion in savings over 10 years as a result 
of medical liability reform based on CBO calculation. The Medicare 
Program alone would save $7.9 billion while Medicaid would save $2.9 
billion. The remaining savings would occur in the Federal Employees 
Health Benefits Program and the Department of Defense.
  What if we had that money to help with the poor? It would certainly 
do a lot of good, more good than is being done by spending it on 
medical liability.
  But it is not only the Federal Government that is affected. Medical 
liability litigation directly and dramatically increases health care 
costs for all Americans.
  What is more, skyrocketing medical litigation costs increase health 
care costs indirectly by changing the way doctors practice medicine. In 
an effort to avoid frivolous suits, doctors often feel compelled to 
perform diagnostic tests that are costly and unnecessary. This 
defensive medicine is wasteful. Unfortunately, for doctors, it has 
become a necessity.
  I hate to admit it, but I am partly responsible for that myself 
because, knowing that many doctors are going to be sued unnecessarily 
and improperly, I advised them to do what they can to protect 
themselves. Consequently, this defensive medicine is leading to a lot 
of unnecessary defensive medicine. And they have to do it or they face 
unnecessary litigation.
  According to a recent Harris poll, fear of being sued has led 79 
percent of doctors to order more tests than are medically needed; 74 
percent refer patients to specialists more often than necessary; 51 
percent recommend invasive procedures that they thought were 
unnecessary; 41 percent prescribe more medications, including 
antibiotics, that they did not think were necessary.
  Defensive medicine increases health care costs. But the real problem 
inherent in the current medical liability system and the resulting 
process of defensive medicine is that it also puts Americans at risk. 
Every test and every treatment poses a risk to the patient. Every 
unnecessary test, procedure, potentially puts a patient in harm's way.
  According to the Harris poll, 76 percent of the physicians are 
concerned that malpractice litigation has hurt their ability to provide 
quality care for their patients.
  That brings us to the main question. What can we do to address this 
crisis

[[Page 17099]]

today? The answer is, plenty. There are excellent examples of what 
works. The March 2003 Department of Health and Human Services report 
describes how reasonable reforms in some States have reduced health 
care costs and improved access to, and the quality of, care. According 
to this report, over the last 2 years the States with limits of 
$250,000 or $300,000 on noneconomic damages premiums have increased an 
average of 18 percent compared to 45 percent in States without such 
limits.
  In 1975, California enacted the Medical Injury Compensation Reform 
Act, MICRA. Again, I will refer to this chart. This graph shows that 
MICRA slowed the rate of increase in medical liability premiums 
dramatically, and it did so without affecting negatively the quality of 
health care received by the State's residents.
  The red on the chart is States that have gone up 573 percent from 
1976 to the year 2000. In California they have increased by only 182 
percent. As a result of MICRA, California has saved billions of dollars 
in health care costs, and Federal taxpayers have saved billions of 
dollars in the Medicare and Medicaid Programs.
  The March 2003 report goes on to state:

       A leading study estimates that reasonable limits on non-
     economic damages such as California has had in effect for 25 
     years, can reduce health care costs by 5-9% without 
     ``substantial effects on mortality or medical 
     complications.'' With national health care expenditures 
     currently estimated to be $1.4 trillion if this reform were 
     adopted nationally, it would save $70-$126 billion in health 
     care costs per year.

  Now, in our joint HELP and Judiciary Committee hearings in February, 
we heard from those who believe insurance reform is a cure for this 
crisis. These individuals believe the Federal Government rather than 
the States should regulate insurance. Those who advocate Federal 
insurance regulation apparently believe the States and the State 
insurance commissioners are not able to accomplish this alone. They 
suggest that insurance companies are colluding to increase premiums. In 
all honesty, some of them are getting out of the business because of 
the risks and exposure they face.
  There has been little, if any, evidence during or after our hearing 
to support these allegations. In fact, we heard that the State 
insurance commissioners monitor and regulate insurance business 
practices very closely. The State laws are based on the National 
Association of Insurance Commissioners model rating laws that include 
the following language:

       No insurer or advisory organization shall attempt to 
     monopolize or combine or conspire with any other person to 
     monopolize an insurance market or engage in a boycott . . . 
     of an insurance market.

  And:

       No insurer . . . shall make any arrangements with any other 
     insurer . . . which has the purpose or effect of unreasonably 
     restraining trade or lessening competition in the business of 
     insurance.

  Moreover, insurance companies are precluded from increasing premiums 
to make up for past losses. It seems to me insurance reforms that some 
have proposed not only miss the mark badly, they would do nothing to 
address the cause of the crisis and would prevent State insurance 
commissioners from performing their jobs.
  I have to say I came away from the hearing convinced, and I remain 
convinced, that out-of-control medical litigation is the major cause of 
the crisis and we have to do something to stop it. The current medical 
litigation system represents and resembles a lottery more than a 
justice system. This system harms patients in many ways. All Americans 
deserve the access to care, the cost savings, and the legal protections 
that States such as California provide their residents. This problem 
has reached crisis proportions, and it is high time we end it.
  The task before us is to design a system that protects both the 
patient and the provider. S. 11, the Patient First Act of 2003, which I 
am proud to cosponsor, includes provisions that have been shown to work 
that are fair to all concerned. So S. 11 would encourage speedy 
resolution of claims by providing a reasonable statute of limitations. 
The bill provides for unlimited awards for economic damages, and it 
limits awards for noneconomic damages to $250,000.
  Moreover, S. 11 does not preempt State limits on awards for damages, 
noneconomic or otherwise, even if the State limits are higher than 
those imposed by S. 11. The Patient First Act limits attorney's fees, 
thereby reducing the costs of medical liability litigation and 
channeling award money to where it belongs, the injured patient.
  Normally I am against that, limiting the attorney fees, but in this 
particular case we have to do something. Women are going to be without 
obstetricians. Many people are going to be without surgeons and many 
will be without specialists. Young people are not going to go into the 
profession. Young outstanding geniuses who would make great doctors do 
not want to go into the profession.
  In addition, S. 11 provides for evidence of collateral source 
payments to be introduced in any health care lawsuit. Juries would be 
made aware of existing health insurance or other sources that 
compensate individuals for injuries. No longer would Americans 
compensate an individual twice for the same injury.
  While there is much to commend S. 11, one provision we should 
consider adding is the carefully crafted catastrophic exception to the 
limit on awards for noneconomic damages. A carefully worded 
catastrophic exception can provide that individuals who have 
particularly severe injuries as a result of extremely egregious acts of 
negligence receive an award for noneconomic damages that would be 
greater than the limit. Nine States have included such a provision in 
their statutes.
  Having said that, I must say that S. 11 is a very good bill and I 
believe that it will accomplish our primary goal of ensuring that 
Americans have access to health care.
  What I like most about the ``Patients First Act'' is that it is true 
to its name.
  The bill puts the patient first.
  Not the doctor.
  Certainly not the lawyer.
  You see, it is the patient who is threatened the most by the medical 
liability litigation crisis.
  It is the patient who eventually pays for the increased health care 
costs and it is the patient that suffers most when he or she cannot 
access needed care.
  The medical liability litigation crisis threatens the economic health 
of our country and the personal health of every American. It is like a 
festering wound, spreading like an infection throughout the country. It 
is time that we cured this infection by treating it with a proven 
remedy. S. 11, the Patients First Act of 2003 is the proven remedy 
Americans need and deserve. I urge my colleagues to join me in 
supporting this very important legislation.
  Madam President, I began these remarks by stating that, as someone 
who had experience in this field, I have witnessed an unfortunate 
transition; a transition from the days when the standard of practice in 
the community was the rule in most communities, which seemed to me to 
be a fair rule, to a rule of the doctrine of informed consent, which 
means the doctor has to so inform the patient that the patient knows 
all of the risks involved. Well, the patient would have to go to 
medical school to know all of the risks and it would take so much of 
the doctor's time to advise a patient of those risks that none of us 
could afford it.
  There are always risks in surgery and there are always risks in a 
number of clinical procedures. Consequently, because no doctor can ever 
really meet those standards, every one of those cases go to trial. In 
this country, jurors don't realize by giving outrageous awards that are 
not justified in these medical liability cases, they are basically 
spreading that cost to everybody in society.
  If we do not act, babies will not be delivered with the utmost care 
in the future. Americans will not have access to trauma care. Americans 
will not have access to the top surgeons.
  And if we do not act, unnecessary and costly defensive medicine will 
continue. I have to say, I have witnessed

[[Page 17100]]

the increased use of costly CAT scans and MRIs in cases where patients 
could very easily have been treated at a very low cost in comparison. 
You can go right on down the line in almost everything else. It is 
getting so that young people in this country cannot afford to have 
children because it costs so much, and it is all driven by this medical 
liability situation. I think that is pathetic. I think it is pathetic 
for anybody to stand on the floor and say this is not a problem of 
tremendous concern and, literally, say that it is the insurer's fault.
  That just is not the case. In all honesty, it doesn't take a rocket 
scientist to figure out what the problem is. I hate to say it, being a 
lawyer and having been a trial lawyer. The problem is caused by many in 
our profession who are bringing these frivolous suits. I have to tell 
you that I have seen lawyers bring frivolous medical liability suits 
for one reason and that is because it costs between $50,000 and 
$100,000 to defend those suits. Many of these insurance companies, 
rather than take the risk of a runaway jury or a forum shopping 
situation, even within in a state, will pay the defense costs to get 
out of the case even though the case has no merit.
  Settling 20 of these frivolous cases per year, makes a pretty good 
living for an attorney, just forcing the insurance companies to pay 
defense costs because the insurance company doesn't want to take the 
risk of a runaway jury verdict in a runaway community.
  I think what jurors need to know is that in many respects, by 
allowing outrageous verdicts in some of these cases where there has 
been no negligence, they are basically running this system right into 
the ground. That is what has happened.
  As I say, I would have a catastrophic provision in this bill if I 
could, that basically would take care of particularly egregious, gross 
negligence type cases. There are reasons for bringing litigation from 
time to time. There are good reasons to weed out those doctors who 
should not be in the operating room, those doctors who really are 
incompetent, those doctors who do not do what is right.
  But those are the exceptions, not the rule. We are finding that far 
too many good doctors are leaving the profession because they cannot 
stand this intolerable situation anymore. The country cannot stand it, 
either.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, this legislation, S. 11, is not a 
serious attempt to address a significant problem being faced by 
physicians in some States. It is the product of a party caucus rather 
than a bipartisan deliberation of a Senate committee. It was designed 
to score political points, not to achieve a bipartisan consensus which 
is needed to enact major legislation. For that reason, it does not 
deserve to be taken seriously by the Senate.
  We must reject the simplistic and ineffective responses proposed by 
those who contend that the only way to help doctors is to further hurt 
seriously injured patients.
  Unfortunately, as we saw in the Patients' Bill of Rights debate, the 
Bush administration and congressional Republicans are again advocating 
a policy which will benefit neither doctors nor patients, only 
insurance companies. Caps on compensatory damages and other extreme 
tort reforms are not only unfair to the victims of malpractice, they do 
not result in a reduction of malpractice insurance premiums. Not only 
does this legislation fail to do what it claims but it would do many 
things that its authors are attempting to conceal.
  In reality, this legislation is designed to shield the entire health 
care industry from basic accountability for the care it provides. While 
those across the aisle like to talk about doctors, the real 
beneficiaries will be the insurance companies and large health care 
corporations. This amendment would enrich them at the expense of the 
most seriously injured patients, men and women and children whose 
entire lives have been devastated by medical neglect and corporate 
abuse.
  This proposal would shield HMOs that refuse to provide needed care, 
drug companies whose medicine has toxic side effects, and manufacturers 
of defective medical equipment.
  In the last 2 years, the entire Nation has been focused on the need 
for greater corporate accountability. This legislation does just the 
reverse. It would drastically limit the financial responsibility of the 
entire health care industry to compensate injured patients for the harm 
that they have suffered. When will the Republican Party start worrying 
about the injured patients and stop trying to shield big business from 
the consequences of its wrongdoing? Less accountability will never lead 
to better health care.
  According to professor Sara Rosenbaum, a nationally respected expert 
on health care law at the George Washington University School of Public 
Health:

       This measure is so vast in scope that it reaches every 
     conceivable health care claim against every health care 
     corporation or manufacturer of health care products . . . In 
     this sense the measure extends far beyond its popular billing 
     as one related to the crisis facing physicians and other 
     medical professionals in individual practice.

  In testimony on the companion bill to S. 11 before the House Commerce 
Committee, she stated that the bill was written so broadly that it 
would shield health care companies from claims as varied as billing 
fraud, providing tainted blood to patients, fixing the prices of drugs, 
deliberately overcharging Medicare or Medicaid for health services, 
making defective implants and violating nursing home safety rules. This 
legislation is attempting to use the sympathetic family doctor as a 
Trojan horse concealing an enormous array of special legal privileges 
for every corporation which makes a health care product, provides a 
health care service, or insures the payment of a medical bill. Every 
provision of this bill is carefully designed to take existing rights 
away from those who have been harmed by medical neglect and corporate 
greed.
  This legislation would deprive seriously injured patients of the 
right to recover fair compensation for their injuries by placing 
arbitrary caps on compensation for noneconomic loss in all of these 
cases. These caps only serve to hurt those patients who have suffered 
the most severe, life-altering injuries and who have proven their cases 
in court.
  They are the paralyzed, the brain-injured, and the blinded. They are 
the ones who have lost limbs, organs, reproductive capacity, and in 
some cases even years of life. These are life-altering conditions which 
deprive a person of the ability to engage in many of the normal 
activities of day to day living. It would be terribly wrong to take 
their rights away. The Bush administration talks about deterring 
frivolous cases, but caps by their nature apply only to the most 
serious cases which have been proven in court.
  A person with a severe injury is not made whole merely by receiving 
reimbursement for medical bills and lost wages. Noneconomic damages 
compensate victims for the very real, though not easily quantifiable, 
loss in quality of life that results from a serious, permanent injury. 
It is absurd to suggest that $250,000 is fair compensation for a person 
paralyzed for life.
  Caps are totally arbitrary. They do not adjust the amount of the 
compensation ceiling with either the seriousness of the injury, or with 
the length of years that the victim must endure the resulting 
disability. Someone with a less serious injury can be fully compensated 
without reaching the cap. However, a patient with severe, permanent 
injuries is prevented by the cap from receiving full compensation for 
their more serious injuries. Is it fair to apply the same limit on 
compensation to a person who is confined to a wheelchair for life that 
is applied to someone with a temporary leg injury?
  Caps discriminate against younger victims. A young person with a 
severe injury such as paralysis must endure it for many more years than 
an older person with the same injury. Yet that young person is 
prohibited from receiving greater compensation for the many more years 
he will be disabled. Is that fair?

[[Page 17101]]

  Caps on noneconomic damages discriminate against women, children, 
minorities, and low-income workers. These groups do not receive large 
economic damages attributable to lost earning capacity. Women who are 
homeowners and caregivers for their families sustain no lost wages when 
they are injured, so they only receive minimal economic damages. 
Noneconomic damages are particularly important to these vulnerable 
populations.
  In addition to imposing caps, this legislation would place other 
major restrictions on seriously injured patients seeking to recover 
fair compensation. At every stage of the judicial process, it would 
change long-established judicial rules to disadvantage patients and 
shield defendants from the consequences of their actions.
  It would abolish joint and several liability noneconomic damages. 
This means the most seriously injured people may never receive all of 
the compensation that the court has awarded to them. Under the 
amendment, health care providers whose misconduct contributed to the 
patient's injuries will be able to escape responsibility for paying 
full compensation to that patient.
  The bias in the legislation could not be clearer. It would preempt 
State laws that allow fair trdatment for injured patients, but would 
allow State laws to be enacted which contained greater restrictions on 
patients' rights than the proposed federal law. This one-way preemption 
contained in Section 11(b) shows how result-oriented the legislation 
really is. It is not about fairness or balance. It is about protecting 
defendants.
  The amendment preempts State statutes of limitation, cutting back the 
time allowed by many States for a patient to file suit against the 
health care provider who injured him. Under the legislation, the 
statute of limitations can expire before the injured patient even knows 
that it was malpractice which caused his or her injury.
  It places severe limitations on when an injured patient can receive 
punitive damages, and how much punitive damages the victim can recover. 
Under the bill, punitive damages can only be awarded if the defendant 
acted ``with malicious intent to injure'' or ``deliberately failed to 
avoid unnecessary injury.''
  This is far more restrictive than current law. It prohibits punitive 
damages for '`reckless'' and ``wanton'' misconduct, which the 
overwhelming majority of States allow. In the very small number of 
cases where punitive damages would still be allowed, it would cap them 
at twice the amount of economic damages, no matter how egregious the 
defendant's conduct and no matter how large its assets.
  It imposes unprecedented limits on the amount of the contingent fee 
which a client and his or her attorney can agree to. This will make it 
more difficult for injured patients to retain the attorney of their 
choice in cases that involve complex legal issues. It can have the 
effect of denying them their day in court. Again the provision is one-
sided, because it places no limit on how much the health care provider 
can spend defending the case.
  If we were to arbitrarily restrict the rights of seriously inured 
patients as the sponsors of this legislation propose, what benefits 
would result? Certainly less accountability for health care providers 
will never improve the quality of health care. It will not even result 
in less costly care. The cost of medical malpractice premiums 
constitutes less than two-thirds of 1 percent--66 percent--of the 
Nation's health care expenditures each year. For example, in 2001, 
health care costs totaled $1.42 trillion, while the total cost of all 
medical malpractice insurance premiums was $7.3 billion. Malpractice 
premiums are not the cause of the high rate of medical inflation.
  This chart clearly reflects that we spend $1.42 trillion a year in 
total personal health care expenditures. It is a very large amount per 
individual. If we are ever able to get the cost of health care per 
individual down to a reasonable amount there would be real savings. But 
that isn't what this is about. This is about $7.3 billion, and that 
amounts to just one-half of 1 percent of all medical costs. Medical 
malpractice premiums do not contribute to the overall rise. We ought to 
address the cost of health care. That isn't what this bill is about.
  Over the last 15 years, medical costs increased by 113 percent. The 
total amount spent on medical malpractice insurance rose just 52 
percent over that period, less than half the rate of inflation for 
health care services. The increase is rising at virtually one-half of 
what other health care services are rising.
  The White House and other supporters of caps have argued that 
restricting an injured patient's right to recover fair compensation 
will reduce malpractice premiums. But there is scant evidence to 
support their claim. In fact, there is substantial evidence to refute 
it.
  In the past year, there have been dramatic increases in the cost of 
medical malpractice insurance in States that already have damage caps 
and other restrictive tort reforms on the statute books, as well as in 
States that do not. No substantial increase in the number or size of 
malpractice judgments has suddenly occurred which would justify the 
enormous increase in premiums which many doctors are being forced to 
pay.
  Comprehensive national studies show that the medical malpractice 
premiums are not significantly lower on average in States that have 
enacted damage caps and other restrictions on patient rights than in 
States without these restrictions. Insurance companies are merely 
pocketing the dollars which patients no longer receive when ``tort 
reform'' is enacted.
  Let's look at the facts. Approximately half of the States have a cap 
on medical malpractice damages. Most have had those statutes for a 
substantial number of years. The other half of the States do not have a 
cap on malpractice damages. The best evidence of whether such caps 
affect the cost of malpractice insurance is to compare the rates in 
those two groups of States.
  Based on data from the Medical Liability Monitor on all 50 States, 
the average liability premium in 2002 for doctors practicing in States 
without caps on malpractice damages was $31,926, virtually the same as 
the average premium for doctors practicing in States with caps, which 
was $30,521.
  There are many reasons why insurance rates vary substantially from 
State to State. This data demonstrates that it is not a State's tort 
reform laws which determine the rates. Caps do not make a significant 
difference in the malpractice premiums which doctors pay. This is borne 
out by a comparison of premium levels for a range of medical 
specialties.
  The average liability premium in 2002 for doctors practicing internal 
medicine was less--2.8 percent--for doctors in States without caps on 
malpractice damages--$9,552--than in States with caps on damages--
$9,820. Internists actually pay more for malpractice insurance in the 
States that have caps.
  The average liability premium in 2002 for general surgeons was almost 
identical for doctors in States without caps--$33,016--than States with 
caps--$33,157. Surgeons are paying the same regardless of the State's 
tort laws.
  The average liability premium for OB/GYN physicians in 2002 in States 
without caps--$53,163--exceeded the rate for doctors in States with 
caps--$48,586--by less than 10 percent, a relatively small difference.
  Shown on this chart are the figures for: internal medicine, general 
surgery, OB/GYN, and the physicians in States without caps on damages 
and the physicians in States with caps on damages. A fair reading of 
that would indicate there is virtually little that would reflect itself 
in lower malpractice insurance rates for those States with caps.
  This evidence clearly demonstrates that capping malpractice damages 
does not benefit the doctors it purports to help. Their rates remain 
virtually the same. It only helps the insurance companies earn even 
bigger profits. As Business Week Magazine concluded after reviewing the 
data ``the statistical case for caps is flimsy.'' That is from their 
March 3, 2003 issue.
  Since malpractice premiums are not significantly effected by the 
imposition

[[Page 17102]]

of caps on recovery, it stands to reason that the availability of 
physicians does not differ between States that have caps and States 
that do not. AMA data shows that there are 233 physicians per 100,000 
residents in States that do not have medical malpractice caps and 223 
physicians per 100,000 residents in States with caps. Looking at the 
particularly high cost speciality of obstetrics and gynecology, States 
without caps have 29 OB/GYNs per 100,000 women while States with caps 
have 27.4 OB/GYNs per 100,000 women. Clearly there is no correlation.
  If a Federal cap on noneconomic compensatory damages were to pass, it 
would sacrifice fair compensation for injured patients in a vain 
attempt to reduce medical malpractice premiums. Doctors will not get 
the relief they are seeking. Only the insurance companies, which 
created the recent market instability, will benefit.
  A National Association of Insurance Commissioners study shows that in 
2000, total insurance industry profits as a percentage of premiums for 
medical malpractice insurance was nearly twice as high--13.6 percent--
as overall casualty and property insurance profits--7.9 percent. Do we 
understand that now? This is the National Association of Insurance 
Commissioners. Their study showed, in the year 2000, that the insurance 
industry profits as a percentage of premiums for medical malpractice 
insurance was twice as high as casualty and property insurance profits. 
The profits from the premiums for medical malpractice insurance were 
twice as high. This is the National Association of Insurance 
Commissioners study.
  In fact, malpractice was a very lucrative line of insurance for the 
industry throughout the 1990s. Recent premium increases have been an 
attempt to maintain the high profit margins despite sharply declining 
investment earnings. That is what is at the root cause here.
  Insurance industry practices are responsible for the sudden, dramatic 
premium increases which have occurred in some States in the past 2 
years. The explanation for these premium spikes can be found not in 
legislative halls or in courtrooms, but in the boardrooms of the 
insurance companies themselves.
  There have been substantial increases in the last 2 years in a number 
of insurance lines, not just medical malpractice. Insurers make much of 
their money from investment income. Interest earned on premium dollars 
is particularly important in medical malpractice insurance because 
there is a much longer period of time between receipt of the premium 
and payment of the claim than in most lines of casualty insurance.
  The industry creates a ``malpractice crisis'' whenever its 
investments do poorly. The combination of a sharp decline in the equity 
markets and record low interest rates in the last 2 years is the reason 
for the sharp increase in medical malpractice insurance premiums. What 
we are witnessing is not new. The industry has engaged in this pattern 
of behavior repeatedly over the last 30 years. When ``tort reform 
laws'' are enacted, the insurance companies pocket the resulting 
savings to bolster their profits.
  Last month, Weiss Ratings, Inc., a nationally recognized financial 
analyst, conducted an in-depth examination of the impact of capping 
damages in medical malpractice cases. This is a nationally recognized 
financial analyst. Their conclusions sharply contradict the assumptions 
on which this legislation is based. Weiss found capping damages does 
reduce the amount of money that malpractice insurance companies pay out 
to injured patients. However, those savings are not--those savings are 
not--passed on to doctors in lower premiums. That is the conclusion.
  This is what the Weiss report, issued on June 3 of this year, states:

       Since the insurers in the states with caps reaped the 
     benefit of lower medical malpractice payouts, one would 
     expect that they would reduce the premiums they charged 
     doctors.

  At the very minimum, they should have been able to slow down the 
premium increases. Surprisingly, the data show they did precisely the 
opposite. Between 1991 and 2002, the Weiss analysis shows that premiums 
rose by substantially more in the States with damage caps than in the 
States without caps. The 12-year increase in the median annual premium 
was 48.2 percent in the States that had the caps, and only 35.9 percent 
in the States that had no caps. In the words of the report:

       On average, doctors in states with caps actually suffered a 
     significantly larger increase than doctors in states without 
     caps. . . . In short, the results clearly invalidate the 
     expectations of caps proponents.

  There it is. Those States with the caps, 48.2 percent median premium 
increase; States without caps, 35.9 percent. That is from the study by 
Weiss Rating, Inc. It is not a study that is made up by those of us who 
are expressing opposition.
  Doctors, especially those in high-risk specialties, whose malpractice 
premiums have increased dramatically over the past 2 years, do deserve 
premium relief. That relief will only come as a result of tougher 
regulation on the insurance industry.
  When insurance companies lose money on their investments, they should 
not be able to recover those losses from the doctors they insure. 
Unfortunately, that is what is happening.
  Doctors and patients are both victims of the insurance industry. 
Excess profits from the boom years should be used to keep premiums 
stable when investment earnings drop. However, the insurance industry 
will never do that voluntarily. Only by recognizing the real problem 
can we begin to structure an effective solution that will bring an end 
to unreasonably high medical practice premiums.
  I conclude with a quotation from the analysis of medical malpractice 
premiums by Weiss Ratings, Inc. Weiss Ratings, as I said, is not 
speaking from the perspective of a trial lawyer or a patient advocate, 
but as a hard-nosed financial analyst that has studied the facts of 
malpractice insurance ratings. Here are their recommendations to us 
based on those facts:

       First, legislators must immediately put on hold all 
     proposals involving non-economic damage caps until convincing 
     evidence can be produced to demonstrate a true benefit to 
     doctors in the form of reduced med mal costs. Right now, 
     consumers are being asked to sacrifice not only large damage 
     claims, but also critical leverage to help regulate the 
     medical profession--all with the stated goal that it will end 
     the med mal crisis for doctors. However, the data indicate 
     that similar state legislation has merely produced the worst 
     of both worlds: The sacrifice by consumers plus a 
     continuing--and even worsening--crisis for doctors. Neither 
     party derived any benefit whatsoever from the caps.

  Mr. DURBIN. Will the Senator yield for a question?
  Mr. KENNEDY. I also reference a really excellent article in U.S. News 
and World Report from June 30 that shows on a chart what has been 
happening with premiums going from $2.9 billion to $4.9 billion and, on 
the other hand, points out insurers' payments after the jury verdict 
was $147 billion in 1993 and in the year 2001, $172 billion--so 
basically a fairly flat line across almost a 10-year period, a dramatic 
increase in the premiums and virtually flat in terms of the payments.
  I am glad to yield.
  Mr. DURBIN. If the Senator from Massachusetts would yield for a 
question, I would ask him, since he has been our leader in the Senate 
on the issue of a Patients' Bill of Rights to ensure that patients 
across America have their rights against HMOs and managed care 
companies--I ask the Senator from Massachusetts, is he aware that 
despite the copious debate on the floor about the crisis facing 
physicians across America, S. 11 provides a limitation on liability not 
just for doctors and hospitals but also for HMO insurance companies, 
managed care organizations, pharmaceutical companies, and manufacturers 
of medical devices?
  Mr. KENNEDY. The Senator is exactly right. It is not only limited to 
those groups the Senator has cited, but there is a strong belief that 
it would also apply protection for billing fraud, tainted blood to 
patients, fixing of prices of drugs, deliberately overcharging Medicare 
and Medicaid for

[[Page 17103]]

health services, as well as making defective implants, and violating 
nursing home safety standards.
  We don't hear much from those who are supporting this about why all 
of these various groups need this kind of protection. It is a catch 
all, not dealing with what was stated by many of those who were 
speaking in favor. This is a catch all for anything to do in any way, 
under any pretense, with the health care industry.
  Mr. DURBIN. May I ask the Senator from Massachusetts another question 
through the Chair. There is a section in this bill I would like to call 
to his attention, section 13. I would like to read it to the Senator 
and ask him to respond, since he has been the sponsor of a Patients' 
Bill of Rights, so that once and for all HMOs and managed care 
companies will be held responsible and accountable for medical 
decisions they make that injure patients. I ask the Senator if he would 
respond and tell the Senate on the record what it means to include in 
S. 11 a section 13, with the following language--sense of Congress:

       It is the sense of Congress 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.

  I ask the Senator from Massachusetts, does this sense of Congress 
language guarantee that those who are harmed by health insurers who 
make bad decisions about diagnostic procedures, stays in the hospital, 
necessary surgery--is this language some refuge and comfort for them 
that finally now they will have their day in court and now, with this 
sense of Congress, they can hold these health insurance companies 
accountable?
  Mr. KENNEDY. It really insults the intelligence of the average 
family, and the average family is far too bright and smart not to 
understand what this says and what it does not. As implicated in the 
Senator's question, this is a sense of the Senate of something we 
should be doing by legislation which we have attempted to do with the 
Patients' Bill of Rights.
  This sense of the Senate is meaningless. It isn't even worth the 
paper it is written on, because of all the other provisions included in 
the legislation which the Senator has spoken to so effectively during 
the course of the debate.
  This is sort of a catch all, a ``make them feel good,'' section, for 
some to be able to say: Look, they have language in here that it is the 
sense we all feel this way. But, of course, it says this in a piece of 
legislation which will effectively undermine the protections for 
working families, for their parents, and for their children.
  We have many things that can be done to provide help to some of those 
who have the particular specialties which need attention, but the idea 
that you have these two lines of a sense of the Senate to effectively 
say: We have done all of these bad things, and we have put them in law, 
but we want a sense of the Senate to make you feel good and show that 
we are actually protecting the average family in this country--as the 
Senator well knows, it isn't worth the paper it is printed on.
  Mr. DURBIN. If I may ask one last question of the Senator?
  Mr. KENNEDY. If I may just add, as the Senator remembers--I hope the 
American people do--we had weeks of debate on the floor on the 
Patients' Bill of Rights. As the Senator remembers, what underlined 
that whole debate was that we ought to put the well-being and the 
health care interests of the patients of this country ahead of the 
bottom line of the HMOs. This was a debate in which the American people 
really participated. It was sidetracked because the administration 
refused to allow States to make the ultimate decision about 
compensation for individuals. That was in the final compromise which 
this administration refused.
  So for all those who want to talk about States rights issues on this 
and the States know best--all those who make that argument--they 
somehow miss the importance of the real protections for people.
  Mr. DURBIN. My last question to the Senator: If this sense of the 
Congress is not worth the paper it is written on, as the Senator has 
said, is it fair to conclude that since the HMOs and managed care 
companies prevailed before when the Senator from Massachusetts offered 
his Patients' Bill of Rights to protect individuals from insurance 
companies making medical decisions, is it fair to conclude that if S. 
11 were enacted as written, limiting the liability of these HMO and 
insurance companies, these companies would win again, that we would 
reward them again for bad conduct, despite the sense of the Senate, 
sense of Congress, section 13 of this bill?
  Mr. KENNEDY. I think what you could say is that this is the anti-Bill 
of Rights for the American consumer because it goes in just the 
opposite way. Rather than guaranteeing protections, it undermines 
whatever protections are out there. This is a battle we have been 
fighting over and over again in recent years, making sure the most 
basic protections for our consumers and families in the health care 
area are not undermined.
  As the Senator has pointed out, this is going in the opposite 
direction.
  Mr. DURBIN. I thank the Senator.
  Mr. KENNEDY. I thank the Senator.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I wish to respond to a few of the items 
just laid out in the Senate and try to point out what I think are 
glaring inaccuracies.
  First of all, the Weiss report we have heard so much about from the 
last two speakers uses numbers from the Medical Liability Monitor. The 
Medical Liability Monitor just provides the numbers. They are not a 
group that is pro tort reform or anti tort reform. This is what the 
editor, Barbara Dillard, says about the numbers that the other side of 
the aisle is using to somehow skew what the premiums are doing in those 
States that have enacted tort reform. Let me read some of the most 
salient parts:
       The Weiss ratings analysis of medical malpractice caps 
     cites the Medical Liability Monitor as the source of data 
     Weiss uses to calculate ``average'' and ``medium'' premiums 
     for physicians during the last 12 years. While we are an 
     independent news publication and take no position on tort 
     reform, or other proposals to improve the medical liability 
     climate, we feel it is necessary to comment on the use of our 
     statistics because some readers have expressed concern. The 
     median and averages in the Weiss report are not the numbers 
     we report in our annual rate surveys. Weiss may have taken 
     our numbers, the amounts and increases of premiums paid by 
     doctors State by State, and used them to arrive at their 
     statistics. But it is not possible from the report to say 
     definitely how our numbers have been used. It is our view 
     that it is impossible to calculate a valid ``average'' 
     premium for physicians, or for physicians in a particular 
     State or territory, and we state that clearly in the 
     executive summary of our rate survey.

  But the editor of the Medical Liability Monitor goes further. She 
advised the leader's office that:

       It is misleading to use median premiums compiled with data 
     from the Medical Liability Monitor to demonstrate the effect 
     of noneconomic damage limits on liability rates.

  This is exactly what Weiss does. That is the report they have been 
quoting here. The report uses median annual premiums compiled with data 
from the Medical Liability Monitor to try to demonstrate the effect of 
noneconomic damage limits on liability rates. Not only is this wrong, 
it downright misleads the public.
  Let me refer to some of the other issues they were talking about. 
Half of the States have enacted medical liability reform. My State did 
that a year ago. It has caps. If you look at my State, as far as the 
numbers, it would look like it hasn't worked. It takes a minimum of 
probably 8, 10, 12, or 15 years to go through the courts to find out 
whether the caps are going to be upheld. If the insurance companies are 
unsure whether the caps are going to be upheld or not, there is no 
predictability there because they can reach way back--once it is held 
unconstitutional, they can go back and try those cases and get those 
awards.
  That is why in California it took so long--from 1975 until the mid-
1980s--to find out whether the law was going to work. Colorado and 
California have now had their laws in place long enough to stabilize 
rates. Let's look at those two States, in major cities, compared to 
other cities around the country.

[[Page 17104]]

  Here are Los Angeles and Denver. We will start with the general 
surgery. It is almost $37,000 in Los Angeles for the medical liability 
premiums for the year; that is for a general surgeon. In Denver, it is 
around $34,500. New York is about $51,000. Las Vegas was $70,000. It is 
a lot higher this year in Las Vegas. In Chicago, it is $68,000. In 
Miami, it is $174,000. The cities in the gray on the chart are States 
without medical liability reform. The two in the white have had medical 
liability reform in place long enough for them to have predictability.
  This whole debate isn't about hurting patients; it is about helping 
them to have access to quality care. In my State, we had a level I 
trauma center close for 10 days because of a crisis, where the 
specialists who were treating patients there could not afford the 
medical liability insurance anymore. So they had to say: We cannot come 
in there and practice because we cannot afford the insurance. The 
Governor of our State, within a week, called a special session of the 
legislature. They enacted, in a bipartisan way, caps. Unfortunately, 
like a lot of the caps in the country--and they use a lot of these 
statistics--they are similar to the caps in my State where they have 
loopholes that you can drive a truck through, which makes the 
legislation pretty much, as far as a court of law is concerned, 
ineffective. That is why there is a move in my State to close those 
huge loopholes down to where just the most serious cases actually have 
unlimited pain and suffering type of awards.
  In our State, the way they reopened the level I trauma center in that 
special session of the legislature--not only did they enact a $350,000 
cap for the general population but for the level I trauma center they 
put it under the State. Guess what. Our State has $50,000 caps total--
economic, pain and suffering, medical, the whole thing. That is the 
only way they could get the level I trauma center back open. Why did 
they do it? They knew there was a crisis. People had died, and more 
would die if they didn't reopen the trauma center.
  Well, how bad does it have to get in the U.S. for us to say there is 
a crisis? When will the other side realize how bad the situation is in 
America? We are losing specialists. People are leaving the practice of 
medicine--especially those specialties and subspecialties in which we 
already have a shortage in many areas; and new people are not going 
into these areas because they see the writing on the wall. They see it 
is going to be too expensive for them to go out and practice.
  I have a good friend from Las Vegas, Dr. Spoon. We were talking a 
couple months ago. One of his favorite things to do in his practice--he 
is an obstetrician--is to deliver babies, especially those high-risk 
pregnancies. He got so much enjoyment from bringing them to the point 
where they were successful. His insurance company made him stop 
performing high-risk deliveries, and they also cut him down from 250 or 
300 deliveries a year, and he can deliver no more than 125 babies a 
year.
  Southern Nevada is the fastest growing metropolitan area in the 
country. Yet we are losing OB/GYNs and new ones are not coming in. So 
what happens in that area is women are having serious trouble locating 
OB/GYNs to deliver their babies.
  I want to try to talk a little bit about the bill and what it really 
does do and try to clear up some of these issues. First, to go back to 
premiums. It was said that in places such as California premiums and 
caps on economic damages--caps on pain and suffering don't work. 
According to the CBO, they do work. H.R. 5, which is virtually 
identical to the bill we have today, would significantly lower premiums 
for medical malpractice insurance from what they would otherwise be 
under current law. Premiums for medical malpractice insurance 
ultimately would be an average of 25 to 30 percent below what they 
would be under current law.
  The Congressional Budget Office is nonpartisan, and everybody is 
supposed to respect the numbers they put out around here. They 
certainly don't have any pro or con as far as tort reform is concerned. 
There are others such as the U.S. Department of Health and Human 
Services that say States with limits of $250,000 or $350,000 on 
noneconomic damages have average combined highest premium increases of 
12 to 15 percent--that is average combined highest premium increases--
compared to 44 percent in States without caps on noneconomic damages.
  The Joint Economic Committee of the Congress says that tort reform 
will reduce overall spending on health care savings by between $67 
billion and $106 billion over the next 10 years.
  I wish to talk a little bit about what kinds of economic damages. 
That has been criticized. We don't cap economic damages. What can you 
get in economic damages under this bill? You can get all lost wages and 
benefits. Lost earning capacity. They say it hurts children. You get a 
child who gets hurt because of malpractice and you can calculate what 
that child would have had over the next 60, 70 years.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. ENSIGN. They may not have the education to know what their total 
potential was but it is 60 or 70 years' worth of earnings they can get 
in economic damages. That can be significant. I will freely admit it is 
not what Barry Bonds would get if he got hurt, or LaBron James, the new 
basketball player. They would obviously get a lot more money because 
they have the potential of making so much more money. But this child 
would still get a significant amount.
  Let me go through these points, and then I will yield for a question.
  All medical expenses would be covered under this bill: long-term 
care, assisted living devices, child care, household services, lost 
time, special medical damages, value of care, counsel, advice, aid, 
comfort, counsel for children, parents, and spouses. All of those are 
possible under economic damages in this bill.
  The final point I wish to make is this: Does this capping hurt 
patients? We just have to look at Colorado and California and ask: Are 
there people out there being hurt? I submit there are a lot more people 
being hurt and going to be hurt in States such as Nevada where the 
doctors are leaving, where the doctor will not be in that emergency 
room or will not be able to deliver a baby, especially in those high-
risk pregnancies.
  This one case in Florida is a very good example. I actually met this 
gentleman. He is a physician himself. He was not performing duties as a 
physician at this time, he was a parent of an injured child. His name 
is Dr. Frank Shwarin. His 4-year-old child in Naples, FL, fell and hit 
his head on the side of the swimming pool. This was in July of 2002. 
The father is named Frank and Craig is the son. He rushed him to the 
nearest hospital only to find that none of the neurosurgeons on call 
would treat patients under 18 years of age. Why? Because they could not 
get medical liability coverage to treat, even in an emergency 
situation, a pediatric neurosurgery case. They had to medevac his son a 
couple hours away. Fortunately, because the father is a doctor, he was 
able to keep his son alive during that time.
  A woman testified before the Senate that when the level I trauma 
center crisis happened in my State, her father died when that trauma 
center was closed because he had to be sent to another emergency room, 
and an emergency room is not a trauma center. They do not have the kind 
of expertise to treat severe trauma. As a result, her father died.
  We cannot guarantee he would not have died in the trauma center, but 
we can guarantee he would have had the best possible care and the best 
chance of living. That is what I believe this debate has come down to: 
The system is out of balance now. It is not working. To correct this 
imbalance, we have to start reining in some of these frivolous, 
outrageous jury awards.
  I yield for a question.
  Mr. DURBIN. Mr. President, I thank the sponsor of the legislation for 
coming to the Chamber. I want to give him an opportunity to complete 
his statement, and perhaps at the end of that

[[Page 17105]]

statement, if he and I can engage in dialog or debate, that would be 
fair. I do not want to interrupt his train of thought during his 
presentation.
  Mr. ENSIGN. That would be fine. I have a couple other issues to go 
through. There are a few other cases I would like to bring to the 
attention of our colleagues.
  First, because we need to put a real face on this issue--we need to 
put a face on the patients, and I think it is legitimate to put a face 
on the other way. I think it is legitimate to put a face on somebody 
who has had a claim of malpractice and actually had malpractice 
committed against them, and it is also fair to put faces on those 
people who now are having trouble finding the kind of health care they 
need.
  This is a balancing act, there is no question about it. There is no 
perfect answer to this situation. I wish there were. The fact is, the 
current system is driving health care providers out of the practice of 
medicine, hospitals are closing down, and we need to correct the 
situation so that when we seek health care in an emergency situation or 
in a nonemergency situation, we will have the kind of care we need.
  A friend of mine in Las Vegas has Parkinson's disease and goes down 
to Loma Linda--I told this story earlier today--to see his 
subspecialist in neurology to treat this disease. He had some fairly 
radical surgery where they actually separate parts of the brain. He has 
had very good success with it. He had a specialist talked into moving 
his practice to Las Vegas shortly before the medical malpractice crisis 
hit in Las Vegas. Once that hit the news, the guy said: Sorry, I live 
in California where we have caps. I cannot go to Las Vegas and pay 
$250,000 a year for my practice for medical liability coverage. I 
cannot afford to do it. Why would I do that when I have a good practice 
here, we have caps, and it is working well in California?
  He wanted to move to Las Vegas. He was ready to go with his family. 
He liked the quality of life in Las Vegas. He did not go simply because 
he cannot afford to take that kind of economic hit. So people in Las 
Vegas have to drive down there.
  Most of the time those are not emergency cases, but for those cases 
that are an emergency, it is just a shame.
  People say this is a State issue. I would counter that this is the 
United States of America, and we are supposed to be able to live where 
we want to live, and now we are saying to people: No, you cannot go 
there because of medical liability premiums, you cannot afford to open 
up your practice because of medical liability premiums. People should 
be able to find the kind of health care they need wherever in the 
United States and live the quality of life and obtain the best health 
care they can possibly get based on what is available in the area. I do 
not think outrageous premiums should be the limiting factor.
  Let me close with this point, Mr. President. Earlier there was debate 
about punitive damages and that we are protecting big companies. Under 
this bill, we do protect companies that make medical devices if they 
have followed FDA regulations. In other words, the manufacturer would 
not be liable for punitive damages if it satisfied FDA's rigorous 
approval process and if the harm to the patient did not result from the 
company's violation of an FDA regulation. If they played by the rules 
that the Government set down, we protect them in this bill from 
noneconomic--we do not protect them from economic or from medical 
expenses. But if they violate the FDA rules, then they are not 
protected. I think that is fairly reasonable. That is why we think this 
bill is a reasonable compromise, is a reasonable approach to solving 
what I believe is an out-of-control system.
  I will be happy to yield for questions.
  Mr. DURBIN. Mr. President, I thank the sponsor of the legislation. I 
would like to ask him this question. Virtually every example the 
Senator has given, every compelling example he has given for this 
legislation involves doctors paying malpractice premiums. Yet as he has 
written this legislation, it goes far beyond providing limitation of 
liability for doctors. It includes limitation of liability for HMOs, 
managed care, pharmaceutical companies, medical device manufacturers, 
and nursing homes.
  Can the Senator from Nevada explain to me why he has not come before 
us and argued on behalf of HMOs and why their exposure to liability for 
wrongdoing is a source of concern and leads to, he thinks, the need for 
legislation?
  Mr. ENSIGN. Mr. President, we know we live in a litigious society. We 
are sue happy today. Everything is somebody else's fault, and we 
immediately go to court. Because of the nature of our courts, it is 
easier to settle. When we settle, it drives up the cost for all of us. 
A lot of the cases never make it because it is too expensive to take 
the case all the way to court.
  A lot of companies especially are self-insured for certain amounts of 
money. It is easier for them to calculate the cost of going to court, 
and what happens in the long run is that all of us pay for that in 
higher premiums. When we have higher premiums, it is pretty simple. We 
end up with a situation where employers cannot afford it. A lot of 
small employers especially are dropping their health insurance coverage 
and we are ending up with 41 million uninsured in this country and a 
big part of that is the cost, not only of the premiums to doctors but 
just the whole cost of defensive medicine that we have to practice 
today because of the fear of being sued.
  Mr. DURBIN. So if the Senator from Nevada will yield for another 
question, through the Chair, is the Senator from Nevada going to bring 
for us then more evidence, as he has when it comes to doctors, as to 
the insurance crisis facing drug companies in America, which as I 
understand are the most profitable corporations in America with an 
average annual return of 18 percent on capital, about 6 times the rate 
of return of the Fortune 500? Is he going to tell us about the 
liability exposure of HMOs that really necessitate this protection 
which he is building into his proposed law, S. 11? Is he going to tell 
us about the medical device corporations that have made faulty products 
which are causing problems across America and how their exposure and 
liability necessitate this need to limit their accountability and cap 
the recovery of innocent people who are victims of their misconduct?
  Mr. ENSIGN. If the Senator would vote for us to go forward with the 
bill tomorrow when we have a cloture vote, we will have a lot of time 
to debate this. We can amend it and go forward with this debate. So I 
hope he will join us in voting for cloture because I do have a lot of 
evidence to justify the various provisions in the bill.
  The bottom line is we all know that today it costs around $900 
million to bring a single new drug to the market. I am not here to 
defend the pharmaceutical companies or any other company.
  Mr. DURBIN. That is what the bill of the Senator does.
  Mr. ENSIGN. No. What I am here to say is we have a problem with our 
health care system today and we need to fix it. If we can go forward 
with this bill, if there are amendments the Senator thinks can improve 
this bill, let's at least move to it so that we can amend it, put the 
amendments forward, and have a healthy debate. We can take a week, or 
whatever it takes, to do that so that we can go forward and try to fix 
some of the glaring problems. If the Senator thinks there are some 
problems with the bill, let's bring forth amendments and try to fix it.
  Mr. DURBIN. If the Senator will yield for another question, I am 
curious. What the Senator has just suggested is a good basis for 
establishing what we might even call a Senate committee where we could 
have Members of the Senate come together, consider evidence, and offer 
amendments before the bill comes to the floor. If I am not mistaken, 
the Senate bill already provides for committees. Why is it that this 
bill, of such consequence, should not go through a Senate committee 
system so that the very aspects that we have just discussed can be 
openly debated and amended and come up with a work product that might 
be of real value to this country?
  Mr. ENSIGN. I say to my friend and colleague that it is obvious why. 
We

[[Page 17106]]

could not get a bill to the floor. The Senator knows that and everybody 
here knows that. It is just like last year when the Senator was in the 
majority, there were at least two bills that I remember, the Energy 
bill, as, well as the prescription drug bill, that were brought to the 
floor that were not brought through committee. They were brought 
directly to the floor by the majority leader at the time. It is not a 
common procedure, but it is a procedure that has to be done every once 
in a while to bring up important legislation that cannot go through 
committee and my colleagues know cannot get through committee.
  The way the Senate works is so different than the House, and the 
Senator knows that. We both served in the House of Representatives. The 
House of Representatives does almost all their work in the committee. 
We can do a lot of our work on the floor and produce a pretty darn good 
product by bringing it to the floor, amending the bill on the floor, 
and that is what I think we should do.
  Mr. DURBIN. If I could ask the Senator from Nevada, the sponsor of 
this legislation, another question, he has spoken about his own home 
State of Nevada and the problems they have faced. In the last 2 days, 
there has been a lot of discussion on the Senate floor about the 
medical malpractice crisis in this country that involves an increasing 
incidence of medical malpractice. In fact, the Bush administration says 
it has reached epidemic proportions.
  I ask the Senator from Nevada, what in his bill, S. 11, would deal 
with the problem in his home State of Nevada, reported by Business Week 
on March 3 of this year, in which they reported that in his home State 
of Nevada, which adopted a $350,000 cap on recovery last year, it was 
discovered that two doctors in his State were responsible for $14 
million of the $22 million in claims awarded in Nevada in 1 year? What 
in this legislation would make certain that those doctors, guilty of 
malpractice, would be held accountable for their wrongdoing and would 
be removed from practice if, in fact, they are not meeting the 
standards of professional conduct?
  Mr. ENSIGN. Mr. President, I say to my colleague that it is a great 
point. I practiced veterinary medicine and I understand how 
professional boards work. I understand that with professional boards 
there is a self-policing that is assumed. It is supposed to happen with 
lawyers. It is supposed to happen with accountants. It is supposed to 
happen with veterinarians. It is supposed to happen with physicians. 
The big problem today with professional boards is they are afraid to do 
something with somebody's license because if they do, they can be held 
personally liable. That happens time and time again.
  All of the professional boards go through this; that as badly as they 
would love to jerk somebody's license, unless it is so clear and the 
evidence is so outrageous of what they have done to deserve their 
license being jerked, it just does not happen. Frankly, it should 
happen more. There are incompetent doctors. There are incompetent 
lawyers. There are incompetent veterinarians. More of them should have 
their license jerked in that case, and I wish they were empowered a 
little more and maybe protected a little more to do that.
  Mr. SESSIONS. Will the Senator from Nevada yield for a question?
  Mr. ENSIGN. I am happy to yield for a question.
  Mr. SESSIONS. I say to Dr. Ensign, we appreciate his leadership on 
this matter and know that he is a professional himself, and he is 
familiar with these liability issues. The Senator talked about two 
doctors in Nevada being responsible for $14 million of the $22 million 
in punitive damages. I guess what I want to ask the Senator is that in 
this way we operate with punitive damages, is not the real truth that 
when two doctors get hit with big verdicts that the premiums from all 
the innocent doctors in Nevada go up? It is not just the bad doctor who 
pays--it is supposed to punish him--but the insurance company pays it, 
does it not, and then they pay for that by raising the premiums on 
everybody else?
  Mr. ENSIGN. The Senator from Alabama brings up a very true point, but 
also the Senator from Illinois is correct in that we do need to do a 
better job of policing the physicians. They need to do a much better 
job of that. That is why I brought up the point of the boards. The 
point is, though, if we vote for cloture tomorrow, maybe we can work 
this out. Maybe we can come up with something that could be addressed, 
or at least give suggestive language to the States to be able to work 
this out. It is so clear that if we can invoke cloture--for the general 
public, that means that we can proceed to the bill. The vote tomorrow 
is just whether we can proceed to the bill. All of this is just pre-
debate on whether we are going to proceed to a bill that is so critical 
to the future health care in this country.
  Mr. SESSIONS. The Senator is exactly correct. I certainly agree, as a 
Federal prosecutor--and I prosecuted some physicians and other 
professionals in the medical business for bad behavior, but the odd 
thing about the way our tort system works, people think the doctor who 
gets sued is being punished, but really the doctor has insurance which 
he is required to have in order to practice in a hospital--virtually 
everybody has to have some, no matter how much it costs--and they do 
not end up being punished. Every physician in the community is 
punished, are they not? Is that not an odd thing that we are dealing 
with in current law?
  Mr. ENSIGN. I do not know if the Senator can see this chart--maybe we 
can have that chart turned just slightly so the Senator from Alabama 
can see it, but it brings up the exact point. The States that have 
capped noneconomic damages in the white, California and Colorado, 
represented by Los Angeles and Denver, in those States let's go down to 
the OB/GYNs, $54,000 in Los Angeles for the annual premiums for the 
medical liability insurance, $30,000 in Denver. Go over to New York; it 
is almost $90,000; in Las Vegas, $108,000. I guarantee that number in 
Las Vegas is old because friends of mine who are OB/GYNs say they are 
paying anywhere from $130,000 to $150,000 a year. Chicago, $102,000 and 
Miami is over $200,000 a year. The cities in gray, representing the 
states in gray, have no tort reform that has been on the books. Nevada 
has it but it has not been on the books long enough. It will take 6, 8, 
10 years. Los Angeles and Denver have had their laws on the books long 
enough to work.
  Because they have enacted what we want to do today, we see these 
premiums.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Talent). The Senator from Alabama.
  Mr. SESSIONS. I will share my thoughts. I believe this bill is a good 
way to go about at the present time dealing with what is a health care 
crisis in America--the surging costs of insurance and liability. I wish 
we were not in the Senate having to deal with it. I have some great 
friends in the tort business, good lawyers, and they have learned over 
the years how to utilize the system to maximize verdicts and maximize 
recoveries. They have been successful.
  Things have gotten out of sync. They need to be brought into sync. We 
can do it a number of different ways. We can do it State by State. The 
truth is over half of the medical care in hospitals in America today, 
and a very large percentage of what doctors do every day, is paid for 
by the Federal Government in Medicaid. It is our tax money. We are 
paying it. Part of the need they have for higher pay and higher 
reimbursement rates is because of the malpractice insurance they must 
pay.
  Caps on damages have worked. Last week I was in the small town of 
Russellville in Alabama where I practiced law for a year or so. It is 
pretty far off the beaten path. A bright young doctor gave me a couple 
of ideas about reforming medical care unrelated to this issue. He told 
me he had come from California. His premiums in Alabama were 
substantially higher, and growing each year, than his colleagues he 
left in California. He did not expect that.

[[Page 17107]]

We have little or no caps. We have some caps in Alabama, but not the 
kind in California.
  I talked to a physician friend of mine, a wonderful person I go to 
church with, Dr. Conrad Pierce, former president of the OB/GYN 
Association. And he talked about the $100,000 liability premiums that 
OBs pay. He said, Jeff, you can get by in a city if you are delivering 
a couple hundred babies a year, but if you deliver 50 or 100 babies, 
this is $1,000 per delivery. It represents your health care premium. 
That is a big deal.
  Mr. ENSIGN. If the Senator will yield, is the Senator aware that, for 
instance, in Las Vegas, they are limiting the number of babies they are 
allowed to deliver to 125. What your friend was talking about is right, 
they used to deliver 250 to 300. Now they limit how many they can 
deliver.
  Mr. SESSIONS. That is the result we are dealing with. All kinds of 
factors are occurring that are impacting adversely health care as a 
result of the premiums.
  As my friend pointed out, in some rural areas you only deliver 50 or 
60. It is not precisely how many babies delivered by a doctor that 
determines the premiums paid. You pay a basic premium if you deliver 
any at all. So the low numbers drive out physicians in rural areas who 
do not deliver that many babies.
  It is a big deal. We have seen medical malpractice insurance jump by 
81 percent over the past 2 years alone. It has driven people out of 
business.
  The Physicians Insurance Association of America shows a fourfold 
increase from the period of 1991 to 2002 in the percentage of jury 
awards that exceed $1 million. We have a fourfold increase in the 
percentage of jury awards that exceed $1 million. Some say the reason 
these premiums have gone up is because insurance reserves are not 
producing the returns they used to produce. I don't think it is 
disputed that we have a substantial increase in the large verdicts 
around the country. That does drive the market.
  In West Virginia, Charleston Area Medical Center lost its Level I 
Trauma Center status, leaving West Virginia University Ruby Memorial 
Hospital as the only Level I Trauma Center in the State. The inability 
of this facility to find neurosurgeons and orthopedists created a 
situation in which critically injured patients had to be medevac'ed out 
of the State.
  Open the newspaper and you will read of similar crises in 
Pennsylvania, Nevada, Mississippi, and other areas. Rural areas are hit 
hardest by the increasing costs. This places additional burdens on 
those who can least afford it.
  In my home State, I was in the town of Atmore, not too far from where 
I grew up. The Atmore Community Hospital was forced to close its 
obstetrics unit because it could not afford the 282 percent increase in 
malpractice insurance from $23,000 to $88,000. When you deliver a 
limited number of children, $88,000 is a substantial cost against you. 
Now expectant mothers must travel either to the hospital in Brewton, 30 
miles away, or to Mobile or Pensacola, FL, an hour away, eliminating 
availability of health care.
  Another rising crisis in my State has been brought to my attention 
involving the nursing home industry. It was a stunning statistic. At 
the request of the American Health Care Association, Aon Risk 
Consultants conducted an actuarial analysis that found there was a 
substantial increase in premiums, an extraordinary increase from 1995 
to 2002 for nursing homes, meaning that the cost for settling and 
defending malpractice claims increased from $320 a bed in a nursing 
home to $4,410 per bed, over a tenfold increase in the insurance 
premiums paid. This was first brought to my attention by an individual 
I know in my hometown of Mobile who shared those numbers with me. It is 
consistent with his personal experience. I was shocked. We are looking 
at $4,000 per-bed cost annually for liability insurance per nursing 
home bed. That is very significant.
  I hope as we go forward we can move beyond obstruction and a 
filibuster to be able to offer amendments, if people think they can 
make it better, that we can do things that would be realistic and 
effective. I think we can do that. This bill has a good core right now. 
I intend to support it and I intend to vote for it and I intend to vote 
to move it up for debate.
  The odd thing about malpractice in America today and the lawsuits 
that get filed are, as I suggested to my able friend from Nevada, 
Senator Ensign, we think we are punishing doctors who make a mistake 
and we sue them for punitive damages. This historically was not a big 
part of litigation in America, but in the last 20 or 30 years punitive 
damages have become a staple in litigation. If a doctor makes a 
mistake, they sue him for the mistake, they sue him for the 
compensation, damages, pain and suffering of the patient, and they 
invariably add it was done recklessly, wantonly, or without due regard 
of care and that he is, therefore, responsible for punitive damages. 
Those punitive damages are added on to it as a punishment to that 
doctor. But already the doctor in the basic recovery is above the 
deductible he had on his insurance policy. He has already paid that out 
of his pocket. So whether it is $1 million or $10 million or $500,000 
in punitive damages, that is paid for by the insurance system that we 
set up. And who pays into that insurance system? All the doctors in the 
community.
  I absolutely agree with Senator Ensign that we need tighter controls 
on physicians by the medical associations, just as I believe--and have 
believed for a long time--we need tighter controls by the legal 
professional community, of which I have been a part. We do not do 
enough there.
  But, regardless of that, you are still going to have negligence. You 
are still going to have these kinds of recoveries. If not capped, they 
continue to shift the payment from the person who did wrong to the 
innocent doctors and physicians out there who will all see their 
premiums increase substantially.
  I have visited hospitals in my State on a regular basis. I visited 
probably 30 hospitals in the last 3 or 4 years. I ask them about how 
their liability insurance premiums are doing. They tell me they tripled 
in the last several years, invariably--more than double consistently, 
they tell me, over the last 3 or 4 years. Each one is somewhat 
different but the premiums have gone up at an extraordinary rate.
  I think this Congress, faced with a demand for improving health care 
and health care delivery to more people, and at the same time trying to 
do so with contained cost, ought to look at one aspect of the medical 
system that produces little or no benefit and that is the amount of 
money paid out through this system.
  Yes, I do believe that lawsuits make some physicians more careful. I 
do think it has led to the altering of practices for better health 
care. I do not believe all lawsuits are bad. I do not believe all 
recoveries are bad. I think it is good sometimes if physicians get hit 
and popped and sent a message. I think the embarrassment of the lawsuit 
itself has a substantial impact on this physician and other physicians 
in the community. But whether the recovery is $500,000 in punitive 
damages, $250,000 or $2 million is not the point. That physician is not 
really going to be paying it. The other physicians in the community 
will be paying it.
  I think we will get the same impact in terms of improving health care 
if we allow lawsuits to go forward but we don't allow them to turn into 
jackpot justice where one patient, one victim, one injured patient who 
sues gets $10 million and another one gets $500,000 or zero for 
virtually the same circumstance. Too often that has happened. This is 
not a systematic way we are dealing with malpractice in America. And 
who is paying for it? John Q. Citizen, the Federal Government, in terms 
of Medicare and Medicaid moneys we send out.
  I think we can do better. I think this bill is a step in the right 
direction. My friend from Illinois is a skilled lawyer. There is no 
doubt in my mind his remarks on this bill will represent the best 
comments that can be made in opposition to it. But overall I think it 
is a net plus. It is the right step to take. We are going to need to do 
something

[[Page 17108]]

about these costs. I do not believe the benefits in improved health 
care are anything like the costs that are being incurred by physicians. 
They do not consider the amount of care being denied American citizens 
as a result of physicians choosing another course.
  Finally, I read in the newspaper about Dr. Sumpter Blackman from 
Camden, AL, a small town I grew up in of not much more than 1,000 
people with a small hospital with about 20-some-odd beds. Dr. Blackman 
is the main physician there.
  It was reported that he may have to give up his practice; that he 
could not get insurance. One of the companies had changed and he was 
not able to get other insurance. The rates were extraordinarily high. 
He was wondering whether or not he should stay in the business.
  I could say to the Members of this Senate, with no doubt, if you took 
a poll of the people in Camden, AL, and the environs and asked who was 
the most important person in that community to them, Dr. Sumpter 
Blackman would win that hands down.
  He was my mother's physician. He takes care of people there. He knows 
them. He is an excellent physician. He is talking about retiring early 
as a result of lawsuits. I think this has gone beyond just talk and 
debate and big insurance companies and rich companies and poor victims 
and doctors. I think it is a health care issue. We cannot afford to 
lose people such as Dr. Sumpter Blackman from the medical profession. 
He has saved the lives of thousands in his long career there in Camden, 
AL, and there are a lot more like him. They are thinking maybe this 
business just isn't worth it; I put aside some money and maybe I will 
just go off somewhere and do something else and not have to worry about 
this and worry about getting insurance.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank the Senator from Alabama for his 
kind words. He and I disagree on many issues but respect one another 
very much. I am sure there will be an issue somewhere along the way on 
which we agree. We are both waiting, and after 6 or 7 years the day may 
come. We will announce it.
  Mr. SESSIONS. If the Senator will yield, I think we do agree we need 
to work to improve our legal system to make it the best we possibly 
can. How do we do that? Sometimes we disagree but I respect the Senator 
from Illinois and his skill.
  Mr. DURBIN. I consider that a rhetorical question but I respect the 
Senator from Alabama.
  Let me say there was a statement made earlier by the sponsor of this 
legislation that tells the whole story. When he came to illustrate the 
savings in malpractice premiums from States with caps and States 
without caps, he said to us, I think the Congressional Record will 
reflect what I am about to say is accurate, that the reason he only 
chose Los Angeles and Denver to illustrate that States with caps lower 
malpractice premiums was because it takes a long period of time for the 
caps to be reflected in the premiums charged to doctors. In his words, 
he said 8 to 12 to 15 years before premiums come down.
  I think perhaps he may be right. Perhaps he may not be right. Over a 
period of 8 to 15 years it is hard to measure what is going to have an 
impact on malpractice premiums. It could be the investment success of 
the insurance company as much as a cap or any other thing. But it tells 
an important part of the story. If we are facing a medical malpractice 
insurance crisis today in America, what is being proposed, limiting the 
recovery of medical malpractice victims, putting a cap on the amount of 
money they can take home from a lawsuit, is, in fact, not going to 
provide relief to doctors or hospitals facing these high premiums 
today. In fact, it may be 8, 10, 12, or 15 years, according to Senator 
Ensign, the sponsor of this legislation. I think that should give pause 
to every Senator who believes they can vote for this legislation, see 
it enacted, go home to doctors in their community and say we have met 
our obligation. I do not think that is a fact.
  There is another side of the story here that is worth at least 
pointing to. When I asked the Senator from Nevada why he included more 
than just doctors in this bill, more than just hospitals in this bill, 
why did he go on to include health care organizations such as insurance 
companies, HMOs, managed care organizations, why did he include 
pharmaceutical companies, medical device manufacturers, nursing homes, 
why are all of them being brought into the debate if our concern is 
whether or not there will be enough doctors around to deliver babies, 
he basically said we are trying to reduce the cost to the health care 
system. I assume if you limited recovery to zero dollars, you could 
reduce it even more. This bill limits it to $250,000 in noneconomic 
losses. He gave an illustration of the fact that economic losses 
include lost wages. Then he went on to say that if a child were injured 
and would be unable to be employed, for example for the rest of his 
life, they would have to try to make some calculation as to the lost 
wages.
  I might remind my friend from Nevada that his bill requires objective 
verifiable losses. How do you calculate that for a 6-year-old boy, such 
as the one I talked about yesterday, who will literally have no work 
life, no work experience the rest of his life on Earth? How do you 
calculate that in objective verifiable ways, as to his future lost 
wages?
  The importance of that, of course, is that is only one of two things 
he can be compensated for--medical losses as well as loss of income. So 
the calculation is very difficult under the exact language of the bill 
written by the Senator from Nevada.
  I take exception to a comment made during the course of this debate 
by my friend from Alabama. He has made this comment before. He referred 
to what he called ``jackpot justice.'' He referred to verdicts that 
really are of little or no benefit, as he said, to society.
  I suggest to him that we have statistics. Virtually both sides 
inundated the record with statistics. But these come from the National 
Association of Insurance Commissioners. Here is what they tell us.
  The number of new medical malpractice claims declined by 4 percent 
between 1995 and 2000. During that 5-year period of time, new medical 
malpractice claims declined by 4 percent.
  If we were talking about a proliferation of claims or lawsuits, the 
record suggests it is not the number. But, of course, some will argue 
how much is being awarded to those that are being filed. I would 
concede that the general awards have gone up. It reflects a number of 
things. It reflects inflation in medical care, and the cost of medical 
care. Everybody knows that is a fact. The cost of prescription drugs, 
the cost of doctors' care, and the costs of hospitals have all gone up. 
That is reflected when a verdict or an award is given to someone who 
has been injured. You would expect under normal circumstances for a 
person who is aggrieved or injured by medical malpractice on a year-to-
year basis to see that award going up, understandably so. But how about 
the big awards, ones over $1 million?
  According to Business Week, and their March 3, 2003, issue, which I 
quoted earlier--Business Week is hardly a liberal publication--in 2001 
there were only 895 out of 16,676 payouts exceeding $1 million, about 1 
percent. That is up from 506 in 1996.
  In a 5-year period of time, the number of awards over $1 million went 
from 506 to 895.
  From the debate on the floor you would conclude that the number was 
much larger.
  I take exception especially to a reference to these awards and 
settlements in larger numbers as ``jackpot justice.''
  I will not bring out the photographs. But earlier I mentioned some of 
the people who have been victims of medical malpractice.
  Heather Lewinsky of Pittsburgh, PA, a 17-year-old who has gone 
through a series of plastic surgeries and will be deformed and scarred 
for the rest of her life by medical malpractice--would a verdict in her 
case be a jackpot? I don't think so.

[[Page 17109]]

  Evelyn Babb, a 75-year-old woman from Tyler, TX, went in for a simple 
knee surgery and the surgeon operated on the wrong knee. As a result, 
this 75-year-old lady lost her mobility and will be suffering with pain 
for the rest of her natural life. Would a verdict in her case be 
``jackpot justice''?
  Sherry Keller from Conyers, GA, a graphic case which I talked about 
earlier, a lady who went into her doctor's office after a hysterectomy 
and had a terrible situation where her womb was reopened because of 
bleeding and she went into shock--the doctor left her alone in the 
room, she fell off the examination table striking her head as she fell 
to the floor, eventually leading to a situation of being a 
quadriplegic. If she received an award, this mother and homemaker, of 
$500,000, has she hit the jackpot?
  I don't think so.
  Colin Gouley from Nebraska came with his family to see us today. This 
little 9-year-old boy, whose life has been compromised dramatically, 
will have a difficult time doing things we pray that every child can 
do, such as read, write, engage in conversation, walk, and run. He will 
never have that chance. A jury in Nebraska thought that his damages 
from malpractice committed against him was worth more than $5 million. 
So did Colin Gouley hit the jackpot with a $5 million verdict if he has 
a lifetime of being in a wheelchair because of medical malpractice? Is 
this ``jackpot justice''?
  Kim Jones, 30 years old, went in for a simple tubal ligation and 
ended up in a comatose state in a nursing home for the rest of her 
life. Is an award in her case a jackpot? Did she hit it big if they 
gave her enough money for someone to care for her the rest of her life? 
Frankly, she will never be able to care for her daughter again.
  Or Alan Cronin, 42 years of age, who went into a hospital in 
California for a routine hernia surgery and ended up with an infection 
so serious that it lead to gangrene in all of his limbs and amputation 
of both arms and legs--Alan Cronin, would he be the winner of a jackpot 
if those who were responsible for his losing his arms and his legs had 
to pay and compensate him not only for his medical bills and lost wages 
but also for his pain and suffering?
  That is the part of the calculation which those who bring the bill to 
the floor have not spoken of. They talked about the challenges facing 
doctors. We conceded that. In some areas of the country, malpractice 
insurance is too high. Don't overlook what this bill does. It closes 
the door and removes the jury from the decision about fair compensation 
for people who have been injured through no fault of their own.
  That is why I think those who are pushing this bill will probably be 
unsuccessful tomorrow. People on this side of the aisle, and 
Republicans as well, believe this bill, S. 11, goes too far. This is 
excessive. This is not setting out to simply solve the problem. This is 
setting out to make a political point--that we are going to go after 
those who would be so bold as to file a lawsuit.
  In the pages of this bill, you will see a limitation on what 
attorneys can be paid if they represent one of these clients or one of 
these patients I have mentioned--people who have lost their limbs, 
people who are no longer able to function as normal human beings. If 
they go to hire a lawyer to represent them in a case of malpractice, 
this law will restrict how much their lawyer can be paid.
  If you believe in justice, wouldn't you also argue that those who 
defend the doctors and defend the hospitals should have their 
attorney's fees limited as well? Wouldn't that be fair? Isn't that 
justice with a blindfold? No. The blindfold is raised on one side. It 
is a wink and a nod to the defense industry representing the doctors 
and the hospitals. But when it comes to these poor people with limited 
economic resources fighting for compensation for injuries that are no 
fault of their own, this bill limits the amount of money that can be 
paid to those lawyers.
  I will tell you that without the contingency fee system, most of 
these poor people I have described today will never ever have their day 
in court. No attorney will be able to represent them.
  Do you recall not too many months ago that sad story in North 
Carolina, I believe at a major university, where there was supposed to 
be a heart-lung transplant and they mistakenly brought the wrong blood 
and tissue type organs to be transplanted and a mistake was made? It 
was clearly not the mistake of the family or the little girl who was 
involved. Discovering this error, they tried to implant an additional 
set of organs--heart and lung--to save her after this serious mistake 
was made.
  I can tell you that this little girl, who sadly died because of that 
malpractice, would have recovered little or nothing for that wrongful 
death under this legislation.
  Where do you point to in terms of lost wages for a little girl who 
died during the course of the surgery? Where is the pain and suffering 
in a wrongful death lawsuit? Yet that is what it comes down to.
  Those sponsors of this bill are prepared to close the courthouse door 
and say that for her family, they do not have the opportunity to get a 
lawyer because the contingency fee is limited, and once they have that 
lawyer there is little or nothing they can recover despite clear 
evidence of medical malpractice.
  That isn't fair. It isn't American. It isn't just. We are talking 
about rewarding people who have been seriously and egregiously injured.
  I hope my colleagues will join me tomorrow in voting against the 
motion for cloture. We should not proceed to this bill. This bill 
should proceed to a committee. It should go to a committee for a long 
period of study of compromise, of amendment, of a good-faith effort on 
both sides involving the medical profession, and the insurance industry 
which gets a windfall from this bill, as they do virtually every bill 
that comes through here, as well as the legal profession; and a bill 
that will end up in a resolution of the problems facing our doctors and 
medical providers whom we value very much, but I don't believe they 
would stand behind such a product that is so fundamentally unfair.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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