[Congressional Record (Bound Edition), Volume 150 (2004), Part 2]
[Senate]
[Pages 2239-2258]
[From the U.S. Government Publishing Office, www.gpo.gov]




 HEALTHY MOTHERS AND HEALTHY BABIES ACCESS TO CARE ACT OF 2003--MOTION 
                         TO PROCEED--Continued

  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, what is the state of business?
  The PRESIDING OFFICER. The time until 4:50 is evenly divided.
  Mr. HATCH. Thank you, Mr. President.
  I rise to speak in support of S. 2061, the Healthy Mothers and 
Healthy Babies Access to Care Act.
  This bill addresses the medical liability and litigation crisis in 
our country, a crisis that is preventing patients from receiving high 
quality health care--or, in some cases, any care at all because doctors 
are being driven out of practice. This crisis is limiting or denying 
access to vital medical care and needlessly increasing the cost of care 
for every American.
  As you will recall, we have previously tried to remedy this crisis in 
access to care. Most recently, we debated S. 11 which failed to receive 
the 60 votes necessary to invoke cloture last July. You have to have a 
supermajority now on these types of issues because of the opponents of 
this bill--and some others.
  The time to act is now. The health care crisis is jeopardizing access 
to health care for many Americans. The medical liability crisis is also 
inhibiting efforts to improve patient safety and is stifling medical 
innovation. Excessive litigation is adding billions of dollars in 
increased costs and reduced access to high quality health care.
  Defensive medicine is way out of whack. We are spending billions of 
dollars on unnecessary defensive medicine because doctors are terrified 
they are going to be sued in these frivolous lawsuits--called medical 
liability suits--by personal injury lawyers.
  I am deeply concerned that we are needlessly compromising patient 
safety and quality health care. We know about 4 percent of 
hospitalizations involve an adverse event, and 1 percent of 
hospitalizations involve an injury that would be considered negligent 
in court.
  These numbers have been consistent in large studies done in New York, 
California, Colorado, and in my home State of Utah. However, the 
equally troubling statistic is only 2 percent of cases with actual 
negligent injuries result in claims, and less than one-fifth--17 
percent--of claims filed actually involve a negligent injury.
  This situation has been likened to a traffic cop who regularly gives 
out more tickets to drivers who go through green lights than those who 
run red lights. Clearly, nobody would defend that method of ensuring 
traffic safety, and we should not accept such an insufficient and 
inequitable method of ensuring patient safety. Numbers are a searing 
indictment of the current medical liability system. I personally 
believe we can do better for the American people, and the Healthy 
Mothers and Babies Act is an important step in that path.
  The problem is particularly acute for women who need obstetrical and 
gynecologic care because OB/GYN is among the top three specialties with 
the highest professional liability insurance premiums. This has led to 
many doctors leaving practice and to a shortage of doctors in many 
States, including 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 in my State. Over half--50.5 percent--of family practitioners 
in Utah have already given up obstetrical services or never practice 
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 5 years.
  An ACOG survey from August 2002 revealed that over half--53.16 
percent--of OB/GYNs in Utah have changed their practice, such as 
retiring, relocating, or dropping obstetrics because of the medical 
liability reform crisis. This change in practice leaves 1,458 pregnant 
Utahns without OB/GYN care.
  The medical liability crisis, while affecting all medical specialties 
and practices, hits OB/GYN practices especially hard, and I suspect 
this is true of every State in the Union. Astonishingly, over three-
fourths, 76.5 percent, of obstetricians/gynecologists report being sued 
at least once in their career. Indeed, over one-fourth of OB/GYN 
doctors will be sued for care given during their residency. These 
numbers have discouraged Americans finishing medical school from 
choosing this vital specialty. Currently, one-third of OB/GYN residency 
slots are filled by foreign medical graduates compared to only 14 
percent one decade ago. OB/GYN doctors are particularly vulnerable to 
unjustified lawsuits because of

[[Page 2240]]

the tendency to blame the doctor for brain-injured infants, although 
research has proven that physician error is responsible for less than 4 
percent of all neurologically impaired babies.
  Ensuring the availability of high-quality prenatal and delivery care 
for pregnant women and their babies, the most vulnerable members of our 
society, is imperative. We simply must pass this bill.
  In August 2003, a GAO report concluded that actions taken by health 
providers as a result of skyrocketing malpractice premiums have 
contributed to health care access problems. These problems include 
reduced access to hospital-based services for deliveries, especially in 
rural areas. In addition, the report indicated that States that have 
enacted tort reform laws with caps on noneconomic damages have slower 
growth rates in medical malpractice premiums and claims payments. From 
2001 to 2002, the average premiums for medical malpractice insurance 
increased about 10 percent in States with caps on noneconomic damages. 
In comparison, States with more limited reforms experienced an increase 
of 29 percent in medical malpractice premiums.
  Medical liability litigation directly and dramatically increases 
health care costs for all Americans. Unfortunately, a high percentage 
of those cases are brought in order to get the defense costs by, in 
many respects, lawyers who are not true to their profession, who are 
personal injury lawyers seeking to make a buck.
  In addition, skyrocketing medical litigation costs indirectly 
increase health care costs by changing the way doctors practice 
medicine. Defensive medicine is defined as medical care that is 
primarily or solely motivated by fear of malpractice claims and not by 
the patient's medical condition. According to a survey of 1,800 doctors 
published in the Journal of Medical Economics, more than three-fourths 
of doctors believed they must practice defensive medicine. A 1998 study 
of defensive medicine by Mark McClellan, our current head of the FDA 
who has been nominated now to be head of CMS, used national health 
expenditure data that showed medical liability reform has the potential 
to reduce defensive medicine expenditures by $69 billion to $124 
billion in 2001, an amount that is between 3.2 and 5.8 times the amount 
of malpractice premiums.
  The financial toll of defensive medicine is great and especially 
significant for reform purposes as it does not produce any positive 
health results nor benefits. Not only does defensive medicine increase 
health care costs, it also puts Americans at avoidable risk. Nearly 
every test and every treatment has possible side effects. Thus every 
unnecessary test, procedure, and treatment potentially puts a patient 
in harm's way.
  Seventy-six percent of physicians are concerned that malpractice 
litigation has hurt their ability to provide quality care to patients. 
What can we do to address this crisis? The answer is plenty. There are 
excellent examples of what works.
  Last March, the Department of Health and Human Services released a 
report describing how reasonable reforms in some States have reduced 
health care costs and improved access to quality health care. More 
specifically, over the last 2 years in States with limits of $250,000 
to $350,000 on noneconomic damages, premiums have increased an average 
of just 18 percent, compared to 45 percent in States without such 
limits.
  California enacted the Medical Injury Compensation Reform Act, also 
known as MICRA, more than a quarter century ago. MICRA slowed the rate 
of increase in medical liability premiums dramatically without 
affecting negatively the quality of health care received by the State's 
residents. As a result, doctors are not leaving California. 
Furthermore, between 1976 and 2000, premiums increased by 167 percent 
in California, while they increased three times as much, 505 percent, 
in the rest of the country. Consequently, Californians were saved 
billions of dollars in health care costs, and Federal taxpayers were 
saved billions of dollars in the Medicare and Medicaid programs.
  No one in this body, perhaps with the exception of our colleague from 
Tennessee, Dr. Bill Frist, our majority leader, is more keenly aware of 
the defects in this system than I. Before coming to Congress, I 
litigated several medical liability cases. I defended health care 
providers. I have seen the heart-wrenching cases in which mistakes were 
made and where judgments should have been brought. But more often I 
have seen heart-wrenching cases in which mistakes were not made and 
doctors were forced to expend valuable time and resources defending 
themselves against frivolous lawsuits.
  I have seen a lot of cases where there was no injury at all that were 
brought by unscrupulous personal injury lawyers, running up the cost to 
all the doctors, to the whole system. A high percentage of these cases 
are brought merely for defense costs because it cost so much to defend 
these cases that even the defense costs mean a pretty good fee if you 
are charging 30 to 40 percent.
  The recent Institute of Medicine report, ``To Err is Human,'' 
concluded that ``the majority of medical errors do not result from 
individual recklessness or the actions of a particular group. This is 
not a bad apple problem. More commonly, errors are caused by faulty 
systems, processes, and conditions that lead people to make mistakes or 
fail to prevent them''. We need reform to improve the health care 
systems and processes that allow errors to occur and to identify better 
when malpractice has not occurred.
  The reform I envision would address litigation abuses in order to 
provide swift and appropriate compensation for malpractice victims, 
redress for serious problems, and ensure that medical liability costs 
do not prevent patients from accessing the care they need. We need to 
move ahead with legislation to improve patient safety and reduce 
medical errors, and we need urgently to address the medical liability 
crisis so that more women are not denied access to quality medical care 
because it has become too expensive for their OB/GYN doctors to 
continue their practice.
  The Healthy Mothers and Healthy Babies Access to Care Act will allow 
us to begin ensuring women and babies get the medical care they need 
and deserve. Without tort reform, juries are awarding astounding and 
unreasonable sums for pain and suffering. A sizable portion of those 
awards goes to the attorney rather than to the patient. The result is 
that doctors cannot get insurance and patients cannot get the care they 
need and deserve.
  All Americans deserve the access to care, the cost savings, and the 
legal protections that States such as California provide their 
residents. Today's bill will allow us to begin to address this crisis 
in our health care system, gives women and their babies access to their 
OB/GYN doctors, and enables doctors to provide high-quality, cost-
effective medical care.
  I strongly support this legislation and urge my colleagues to support 
cloture.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Nevada.
  Mr. REID. Mr. President, I ask unanimous consent that during the 
debate this afternoon with respect to the cloture vote, any Democratic 
speakers be limited to 10 minutes each. The reason I propound this 
request is that we have less than an hour left on our side. We have a 
number of speakers who have a desire to speak. If we have a limited 
time, they will not be able to do that. I ask unanimous consent that be 
the order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I do not object to that. I appreciate the 
time consideration. The Senator from California is kind enough to allow 
me to proceed. I ask unanimous consent that she immediately follow me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, first, I am here to speak on S. 2061 and 
ask our colleagues to support it. Many of my colleagues have already 
spoken of the pressing need for this legislation, so I

[[Page 2241]]

will not repeat their words now. What I will speak about is how the 
medical liability crisis has played out in my region of the country, 
the Pacific Northwest. I believe the situation as it exists there 
provides clear evidence of the need for national reform.
  My story is the tale of two States, my home State of Idaho and our 
neighbor to the west, Oregon. Idaho enacted its original tort reform 
legislation in 1987. This legislation limited the award of noneconomic 
damages in personal injury cases to $400,000. This limit was indexed to 
inflation. Oregon also enacted tort reform legislation in 1987. Like 
the Idaho law, the Oregon law limited the award of noneconomic damages 
in personal injury cases. Oregon's law placed this limit at $500,000.
  Unlike Idaho however, where the tort reform measure withstood 
judicial scrutiny, and has since been strengthened by the Idaho State 
Legislature in 2003, Oregon's law was struck down by the State supreme 
court in 1999. Since the cap was removed, there have been 20 
settlements and jury awards of more than $1 million.
  As expected, the costs of these awards have been passed on to medical 
professionals in the form of higher medical malpractice insurance 
premiums. The Eugene Oregon Register Guard reported on March 19, 2003, 
that obstetricians who have base coverage ($1 million per claim, $3 
million aggregate per year) through Northwest Physicians Mutual, a 
doctor-owned insurance company, have seen their premiums increase 
nearly threefold, from $21,895 in 1999 to $61,203 in 2003. The same 
article referred to a statewide survey conducted by researchers at 
Oregon Health and Science University which found that since 1999, 125 
doctors have quit delivering babies in Oregon--representing about 25 
percent of doctors providing obstetric care. Nearly half of these 
physicians, 48 percent, cited insurance costs and 41 percent said they 
feared lawsuits.
  The article goes on to tell the story of an Oregon physician who is 
abandoning his practice in Eugene, in order to establish a new practice 
in Coeur d'Alene, ID. The physician stated that he was attracted to 
Idaho because the State has safeguards in place for doctors. These 
safeguards have helped keep malpractice premiums down in Idaho. Indeed, 
the Idaho Medical association reports that physicians in Idaho for some 
high-risk specialities, such as obstetrics and gynecology, pay about 
half of what their counterparts in Oregon pay.
  While I welcome any healthcare providers who wish to practice in 
Idaho, I do not wish to see women of a neighboring State, or any State, 
suffer from lack of available health care because medical providers 
cannot afford to purchase malpractice insurance in their home State.
  Now as a firm proponent of our Federal system, I have always believed 
that it is preferable to solve problems at the level of government 
closest to the people. And my preference here would have been for State 
governments to address this issue, as indeed many have. However, many 
other States have either not enacted reform legislation, or as in the 
case of Oregon, have found their efforts at reform sidetracked by 
overzealous judges. And, as the medical liability crisis in the 19 
States identified by the AMA now threatens to overwhelm the entire 
Nation's medical liability system, I feel that now is the time to 
address this issue at the national level.
  A Federal law is required to ensure that reforms will be effected in 
all States. Furthermore, the language of S. 2061 will protect States 
with existing caps. At the same time it will protect health care 
providers by establishing a Federal standard for noneconomic damages 
limits, even if such caps are barred by a State constitution, such as 
in Oregon. By allowing State autonomy in the setting of liability 
limits, this bill respects our tradition of federalism.
  Since this body refused to vote for cloture on a related bill last 
July, the general accounting Office has issued a report assessing the 
effects that rising malpractice insurance premiums have had on the 
public's access to health care. This report, released in August of last 
year, confirmed instances in the five ``crisis'' States studied where 
actions taken by physicians in response to malpractice pressures have 
reduced access to services affecting emergency surgery and newborn 
deliveries. No instances of reduced access to heath care were 
identified in the four ``non-crisis'' States studied.
  The August report follows an earlier GAO report that examined the 
causes of the dramatic increase in malpractice insurance rates. That 
earlier report found that ``losses on medical malpractice claims--which 
make up the largest part of insurer's costs--appear to be the primary 
driver of rate increased in the long run.''
  Together these two studies provide strong evidence that: (1) Rising 
claims costs are driving up the cost of malpractice insurance; (2) the 
rising cost of insurance is causing medical service providers to take 
actions which have limited access to health care; and (3) the 
imposition of noneconomic damages caps, as well as the other reform 
measures included in this bill, are effective in constraining the rise 
of insurance premiums.
  From the Pacific Northwest to the Florida Keys, the problem is clear 
and the solution is clear. The only question awaiting clarification is 
whether this body possesses the resolve to pass this much-needed 
legislation.
  Mr. President, to reiterate, I want to tell the story of two States 
as it relates to this issue and the bill, Healthy Mothers and Healthy 
Babies Access to Care Act, addressing that problem. The States are 
Idaho and Oregon. In 1987, Idaho and Oregon passed identical laws--or 
relatively identical laws. In the State of Idaho, we capped our 
personal injury cases at $400,000. Oregon capped them at $500,000. 
Unlike Idaho, the Oregon Supreme Court, in a period of time immediately 
following that, struck down the Oregon action. Idaho did not.
  Idaho not only held its law but then strengthened that law in 2003. 
Here is the rest of the story. Idaho strengthened its law in 2003. 
Oregon struck down its law in 1999. But they both started in the same 
place. Since the cap was removed in Oregon, there have been 20 
settlements for injury awards of well over a million dollars.
  As expected, the cost of these awards has been passed on to the 
medical professional in the form of higher medical malpractice 
insurance premiums. The Eugene, Oregon Register Guard reported on March 
19, 2003, that obstetricians who have base coverage--that is, $1 
million per claim, $3 million per aggregate per year--through Northwest 
Physician Mutual, a doctor-owned insurance company, have seen their 
premiums increase nearly threefold, from $21,895 in 1999, to 61,203 in 
2003. The same article referred to a statewide survey conducted by 
researchers at Oregon Health and Science University, which found that 
since 1999, 125 doctors have quit delivering babies in Oregon--
representing about 25 percent of the doctors providing obstetric care. 
Nearly half of these physicians, 48 percent, cited insurance costs, and 
41 percent said they feared lawsuits.
  The article went on to talk about one Eugene, OR, physician who moved 
to Coeur d'Alene, ID. The reason he moved to Idaho is because in our 
State of Idaho, their insurance premiums are substantially less because 
the cap we placed in the law has held the test of the courts.
  The reality is that we are trying to set the stage nationwide. We are 
all aware--and many colleagues have come to the floor of the Senate to 
talk about it--of the studies done, the GAO report, the high-cost 
States, and the OB/GYN doctors fleeing from those States, and as a 
result making it very difficult in some instances for pregnant women to 
receive the kind of health services they need and, in fact, upon time 
of delivery, to know they have a doctor waiting at their side to help 
them.
  As medical liability crises in these 19 identified States loom, it is 
time we speak with uniformity across the Nation. That is exactly what 
this bill does. I hope that our colleagues can support cloture and we 
can move to a final vote on this bill. Clearly, the American people are 
now expecting us to speak out.

[[Page 2242]]

  Last week, I held a health care conference in Boise. One of the 
primary concerns was the rapidly rising cost of health care. One of the 
components of that escalation in cost is the very thing we are 
attempting to address today. So I hope the Senate can stand with 
reasonable unity. Myself and others understand the politics of the 
trial bar. When is enough enough?
  If we don't, by this action, deny access to the courts by those who 
are truly injured--and we don't--then why are we allowing a certain 
segment of our society, in the litigious manner they have chosen, to 
line their pockets. Who is the beneficiary? The patient? In many 
instances, they are not. Yet costs go up simply because of the risk 
involved.
  We ought to be protecting the patient and, in this case, the average 
citizen of this country on both sides of that equation by making sure 
they can gain true access to the courts when true injury results and, 
at the same time, making sure we are wise enough to hold down the 
increasing costs of health care, assisted by the dramatic increase in 
premium costs to our physician. This is a step toward that kind of a 
solution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from 
Idaho for his courtesy. I cannot support this bill. I don't believe it 
reflects compromise. I don't think it is materially changed from the 
bill that failed to get 50 votes last July. The major difference, as I 
see it, in this bill is that the liability restrictions apply to only 
one medical specialty group, obstetricians and gynecologists.
  This bill sets a national cap of $250,000 for noneconomic damages. 
The cap applies not only to suits against doctors but to suits against 
HMOs and to manufacturers of gynecological or obstetric products as 
well.
  So, under this bill, the Dalkon Shield contraceptive device would be 
shielded by this $250,000 cap regardless of the harm caused.
  Moreover, this bill severely limits the availability of punitive 
damages against OB/GYNs and manufacturers of related products. The bill 
would also immunize manufacturers or sellers of gynecological products 
approved by the FDA from punitive damages.
  The FDA exemption sets, in a way, a downward course. If a company has 
an FDA-approved product on the market and then learns of dangerous 
complications, the company must remove the product from the marketplace 
immediately. To provide an exemption for products with FDA approval may 
well be a disincentive to prompt removal from the shelf.
  I am one who believes there needs to be a solution to rising 
malpractice insurance premiums. I want to talk to that solution in just 
a moment. But, it is correct that obstetricians and gynecologists are 
reeling under exorbitant medical malpractice premiums.
  Obstetricians and gynecologists had more claims against them and paid 
out more money to plaintiffs than any other medical specialty between 
1985 and 2000.
  Prior to the State of Florida passing medical liability caps last 
year, OB/GYNs in Florida paid over $200,000 annually for malpractice 
insurance.
  OB/GYNS in California, a State with liability caps, pay an average in 
malpractice insurance of $57,000, which is about a quarter of what it 
is in Florida.
  According to the American College of Obstetricians and Gynecologists, 
20 percent of obstetricians and gynecologists in Nevada are leaving 
their practice due to rising malpractice insurance costs. Twenty 
percent of OB/GYNs in West Virginia and Georgia have been forced out of 
their practice. I could go on and on and on.
  I want to talk for a moment about California, and then I want to talk 
about what I think is a logical solution to this. But up to this point, 
the AMA and my own medical association, the California Medical 
Association, won't buy it. Congress can and should provide some 
legislative relief.
  MICRA, the Medical Injury Compensation Reform Act, took place 29 
years ago in California. MICRA set a precedent in the ensuing years for 
reform measures in several States. The MICRA law provides a model.
  Last year, I spent several months reviewing MICRA to see what could 
be transferred to the national level.
  I have come to believe it is possible that reasonable caps on 
liability can lead to affordable premiums.
  When MICRA was enacted in 1975, the cost of health insurance in 
California was higher than in any market except New York City. In the 6 
years before 1975, the number of malpractice suits filed per hundred 
physicians in California had 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, it is 11 percent.
  California's premiums grew 167 percent over the past 25 years 
compared to 505 percent in other States. So the growth in California is 
just about less than a third of what it is in the rest of the United 
States.
  In California, patients get their money faster. Cases in California 
settle 23 percent faster than in States without caps on noneconomic 
damages.
  MICRA allows patients to obtain health care costs, recover for loss 
of income, and receive the funds they need to be rehabilitated. And 
California's malpractice premiums are now one-third to one-half lower 
on average than those in Florida and New York.
  The proposal I would put out for people to study today takes those 
parts of MICRA which I thought could serve as a national model. For 
example, a schedule of attorney's fees; 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; the requirement that a claimant give a defendant 90 days' 
notice of his or her intent to file a lawsuit before a claim can 
actually be filed; allowing defendants to pay damage awards in periodic 
installments; and allowing 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; and permitting the recovery of unlimited 
economic damages. All of these points are now in play in California. I 
believe they are applicable nationally.
  The differences from the California MICRA that I would propose would 
be in two key areas. The first is noneconomic damages, and the second 
would be punitive damages. The California MICRA law has a $250,000 cap 
on noneconomic damages. That is what is proposed in the pending bill. 
In contrast, I would propose a national $500,000 flex cap, a general 
cap on noneconomic damages. This cap would allow a State to impose a 
lower or a higher limit, but it would be pivotal for those States where 
the State laws do not currently allow a State to set a cap. This would 
allow in those States for the cap to be $500,000.
  In catastrophic cases where a victim of malpractice was subject to 
severe disfigurement, severe disability, or death, the cap would be the 
greater of $2 million or $50,000 times the number of years of life 
expectancy of the victim. This handles the situation of a very young 
victim who was really the victim of egregious malpractice.
  In addition, my proposal would have less onerous punitive damages 
standards than California law. California law would require a plaintiff 
to prove punitive damages under the very high standard of fraud, 
oppression, or malice. Under this standard, I am not aware of a single 
case where a plaintiff has obtained punitive damages in California over 
the past 10 years. However, if the State wanted to keep that--any 
State--they could under my proposal. But I would offer a four-part test 
where a plaintiff would have to show by clear and convincing evidence 
that the defendant (1) intended to injure the claimant unrelated to the 
provision of health care; (2) understood the claimant was substantially 
certain to suffer unnecessary injury, and in providing or failing to 
provide health care services, the defendant deliberately failed to

[[Page 2243]]

avoid such injury; (3), acted with a conscious, flagrant disregard of a 
substantial and unjustifiable risk of unnecessary injury which the 
defendant failed to avoid; or, (4), acted with a conscious, flagrant 
disregard of acceptable medical practices in such circumstances.
  I firmly believe a variant of this type could lead to a compromise in 
the Senate, but the AMA and my own medical association, the California 
Medical Association, both flatly rejected this proposal last year. They 
refused any cap for noneconomic damages above $250,000 even in 
catastrophic cases. To me this makes little sense because a $250,000 
cap in 1975, which was when the cap was put in play in California, 
adjusted for inflation, was worth $839,000 in 2002. If $250,000 was 
adequate in 1975, why wouldn't a figure of a half a million dollars--
$500,000--which is lower than the cap adjusted for inflation, be 
acceptable in 2004? If a victim receives $250,000 today, it is the 
equivalent of $40,000 in 1975 dollars.
  There are many specific instances of why a $250,000 noneconomic 
damage, especially today, remains too low. Let me just give you one 
case. I happened to meet this woman, and it is a case that I think 
makes my argument irrevocably. It is the case of Linda McDougal. She is 
46. She is a Navy veteran, an accountant, and 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 her breasts was not 
necessary. A pathologist had mistakenly switched her test results with 
another woman who had cancer.
  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.
  I remain a supporter of malpractice insurance reform. If at any time 
there would be physician support, I believe then the necessary 60 votes 
in this body could be generated for a plan such as I have just 
enumerated.
  In conclusion, I will vote against this bill but stand ready to 
participate in a solution along the lines I have mentioned.
  I thank the Chair, and I thank the Senator from Delaware.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Mr. President, before Senator Feinstein leaves the 
Chamber, she has laid out what may well be a very reasonable 
alternative for this body and our colleagues in the House to consider 
with respect to medical malpractice. She has played a vital role as we 
have worked over the last several years to craft a compromise on class 
action reform and offered maybe the critical amendment to the bill.
  What I would like to do in the 10 minutes I am going to speak is 
compare and contrast, if I can, the approach in bringing this medical 
malpractice bill to the Senate today with the approach that has been 
followed as we have tried to bring class action reform legislation to 
the Senate floor.
  Let me step back for a moment. For those who may be listening to this 
discussion, class action reform seeks to address the issue of when a 
class of people are harmed what kind of redress do they have to seek 
compensation? I think most of us would agree that if a person were 
harmed by a product, good, or service that they had come in contact 
with or acquired that that person should be made whole. I think we 
would also agree if a whole class of people were somehow damaged by a 
product, good, or service that they came in contact with that the class 
of people should be made whole.
  The question is, In what forum should those damaged persons, the 
damaged class, the plaintiff class--where do they turn to for redress 
to gain compensation for their injury or for their harm?
  In my view, and I think it is a view probably shared by a majority of 
my colleagues, we believe that if the plaintiff class happens to be in 
a State different from the State that the defendant is from, our 
Constitution would suggest that maybe in those cases that rather than 
the case being litigated in the State where all of the plaintiffs are 
located, if the defendant is from another State, that the fair thing to 
do to both the defendant and the plaintiff is to litigate that matter 
in Federal court. That has been a subject of some debate.
  It is not an issue that involves limits on punitive damages, 
economic, noneconomic damages, pain and suffering. The debate does not 
lie there. Rather, the debate lies in the area of in what court, in 
what jurisdiction should those kinds of questions be resolved.
  I have been in the Senate for a bit more than 3 years. During that 
course of time, there have been any number of hearings in the Senate 
Judiciary Committee and in the House Judiciary Committee to bring 
before the respective panels in both bodies those who believe that we 
need to change the status quo with respect to class action litigation 
and those who think that what we have is just fine.
  Proponents and advocates have had the opportunity to speak their 
points of view and to testify repeatedly in the Senate and in the 
House. In fact, over the last couple of years, this is what has 
happened in the Senate: Legislation has been developed in committee, it 
has been debated in committee, it has been amended in committee, and it 
has been brought to the floor in an effort to try to have it debated, 
amended, and voted on.
  Last fall, we were able to get 59 votes to proceed to the bill, to 
take it up and offer amendments on the floor, but on class action we 
fell just short of the 60 that we needed to invoke cloture. So we went 
back and we did some more work. Those of us who think changes are 
necessary worked with some of our Democrat colleagues, three of them 
especially, and others as well, to come up with changes that would make 
the bill better, fairer, and more defensible. Hopefully, within the 
next several weeks we will have the opportunity to debate that on the 
floor and to offer further amendments to class action reform 
legislation.
  It has been a long process, some would say too long. What happens is 
we start off with a reasonable proposal, debate it in committee, 
improve it in committee, report it out of committee, and then we are 
going to have the opportunity to bring the bill to the floor and it 
will be altered, I think improved, when that same bill comes to the 
floor.
  Once the bill is on the floor, we will have the opportunity for full 
and open debate to consider what people like about it and do not like 
about it. They can offer their changes and we will have an up-or-down 
vote at the end of the day when we have amended the bill. That is what 
we call regular order. That is the way an issue of this nature should 
be decided.
  To my knowledge, maybe in the last 3 years there has been one hearing 
in one committee in the Senate on the issue of medical malpractice. If 
there have been others, I am not aware of them. A year ago, there was 
one hearing in one committee on this issue. I do not believe the bill 
has been marked up in that committee.
  They did not vote on that bill in that committee. They did not seek 
to amend this medical malpractice bill in that committee. Instead, we 
simply find a related bill appearing on the Senate agenda with no 
opportunity to offer amendments, to improve it as maybe Senator 
Feinstein, Senator Durbin, or others would like to do but, rather, to 
have to kind of take it or leave it. That is not regular order and that 
is not the way to build consensus, particularly on an issue as 
difficult and as contentious as this one.
  Another issue we have been dealing with, which involves litigation 
reform, is the subject of asbestosis. We all know that for many years 
people used asbestos. It was used in all kinds of projects, 
construction, automobiles, brakes, ship construction. Asbestos was 
commonly used. We later found out that it kills people. It causes 
asbestosis, mesothelioma, and other diseases. We now have been working 
for years to try to figure out how do we compensate the victims of 
asbestos exposure to make them whole. That process is one that has gone 
on for any

[[Page 2244]]

number of years, too. The process we followed there is the opportunity 
to fully debate the issue in committees, to hold hearings in 
committees, where people who are for and against it have a chance to 
express their views. There are a lot of interested parties such as 
insurance companies, manufacturers, labor unions, the trial bar, and 
others that have had the opportunity to add their input. I hope what we 
now have coming to the Senate floor sometime later this spring is 
legislation that says maybe the way we handle asbestos litigation in 
this country can be improved on so we make sure people who are sick and 
dying of asbestos exposure get the help they need, and make sure people 
who are not sick will not ever be sick and do not siphon off money from 
those who truly need it. We need to come up with a fair system and one, 
frankly, that will stem the loss of companies, corporations, and 
businesses that are going bankrupt by the scores of asbestos exposure.
  If we compare the way this body has approached class action reform 
legislation, in a very deliberate and thoughtful fashion, with plenty 
of opportunity for debate and changes, and compare that with what is 
before us today, it is night and day. There is really very little 
similarity.
  I suggest to our friends on the other side of the aisle that on this 
particular issue if they are interested in finding a fair and 
reasonable solution, there are a number of us on this side of the aisle 
who would be willing to engage with them to find that. In the meantime, 
I would suggest they take a look at what States are doing.
  Senator Feinstein talked about her own State. In Delaware, the 
Governor put together a group, not a partisan group but a group that 
includes the trial bar, health providers, hospital representatives, 
folks within government and outside of government, to try to figure out 
if we needed to make any changes in our own State with respect to 
medical malpractice.
  In the end, they said: We do not think we have a problem in Delaware 
with physicians being unable to get the coverage at a reasonable price. 
We do not have out of control jury awards. This is not a huge Delaware 
problem. Rather, they did suggest one change which I think is 
instructive. What they did was said why do we not provide for the 
certification of medical malpractice litigation to certify that it is 
not a frivolous lawsuit. If someone wants to bring a suit before it 
ends up in court, there will be a panel of knowledgeable people within 
that area of health care who will look at the assertion of the 
plaintiff and decide whether or not this is a frivolous lawsuit. If it 
is, the litigation does not go forward. That is what one State is 
doing, as a temporary measure.
  I close by saying this: Unlike asbestos litigation reform, which 
needs a national solution, unlike class action litigation reform, which 
I believe needs a national solution, for the most part States can deal 
with on a case-by-case, State-by-State basis issues revolving around 
medical malpractice. I think for the most part we are better off 
pursuing that. Not everybody will agree with me on that point, but I 
think most people in this body will agree on this point, and that is 
the right way to legislate on these contentious issues is the approach 
we have taken with respect to class action reform and the approach we 
are taking with respect to asbestos litigation reform, where all sides 
have the opportunity to be heard, Members get to offer their amendments 
in committee and on the floor and then we go forward. That is the way 
to do business, and if we do business on those bases and in that 
accord, on a more consistent basis, we will be able to not only talk 
about doing something that needs to be done but actually accomplish it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Talent). The Senator from New Jersey.


                             Chicken Hawks

  Mr. LAUTENBERG. Mr. President, I rise to discuss a troubling issue 
that has plagued our political debate for many years and now has come 
to a head. I cannot stay silent any longer.
  We so much admire the eagle, the bird of strength, the bird that 
portrays the courage of America, the willingness to support our country 
no matter what the cost. That is what the eagle says to me. At times it 
has been an endangered species. But there is another bird I want to 
talk about today. That bird is called, in my view, the chicken hawk. 
There is such a bird, but usually it is the hawk chasing the chicken. 
But now I want to talk about the chicken that really chases the hawk.
  Those of us who answered our Nation's call for military service at 
wartime have not grandstanded on that issue. We served our country and, 
frankly, many of my colleagues who answered the call are not always 
willing to talk about their experiences.
  But now I see a disturbing trend from the other side of the political 
aisle. More and more, Senators in this body are tagged as lax on 
national security or homeland security or support for the military 
because of votes they took against problematic defense bills over the 
years. For years the charge coming from across the aisle is that 
Democrats are somehow or other less patriotic, less supportive of 
defense, and it is a shameful and grotesque charge. In my view these 
charges typically come from people I would simply call chicken hawks.
  My definition of a chicken hawk is someone who talks tough on 
national defense and military issues, casts aspersions on others who 
might disagree on the vote, but when they had a chance to serve, they 
were not there. Now they are attacking the Senator from Massachusetts 
for opposing bloated or poorly designed defense bills. Is it known how 
much courage it takes to vote against a bad Defense authorization or 
appropriations bill? We all know it takes a lot of political courage, 
because even if the bill contains wasteful and damaging provisions, the 
vote can be twisted by your opponents. But when faced with a bad 
defense bill, what do the chicken hawks do? They take the easy road. 
They fly the easy route. They always vote for it, no matter what it 
says. How much courage does it take to vote for a bad defense bill? 
None. Zero. It is the easy thing to do.
  Our colleague, the distinguished junior Senator from Massachusetts, 
is being attacked this week by the other side of the aisle as being 
weak on support for the military and compromising the defense of our 
country. I say shame on those who impugn the patriotism of those who 
supported their country's call for duty and paid for it with injuries 
resulting from their obedience to that call.
  In my view, that is the cry of the chicken hawk who has no idea what 
it means to have the courage to put your life at risk to defend your 
country and its ideals. But the Senator from Massachusetts knows it all 
too well. When our country went to war in southeast Asia, the Senator 
from Massachusetts enlisted in the Navy. He requested to be sent to 
Vietnam to fight for his country, and he did that. For his heroic 
service in Vietnam, the Senator from Massachusetts won the Silver Star, 
the Bronze Star, three Purple Hearts--that means he was wounded three 
times; it is a miracle he is still alive--the Combat Action Ribbon, the 
Navy Presidential Unit Citation, the Navy Unit Commendation Ribbon, the 
National Defense Service Medal, the Vietnam Service Medal, and the 
Vietnam Campaign Medal. How dare they challenge his commitment to our 
defense? His patriotism?
  The Senator's action took courage. It is the same courage the Senator 
showed when he refused to vote for defense bills merely because they 
were defense bills. As a man who has seen a battlefield, he has a keen 
understanding of military needs and military policy and he voted 
accordingly. He actually did what his constituents sent him here to do: 
evaluate legislation on its merits and vote with your conscience and 
your obligation to our citizens.
  Did it take courage? Of course. Integrity? Of course. Was it an easy 
thing to do? Absolutely not. The easy thing to do would be to simply 
vote for all the defense bills, no matter what they say, and pretend 
these votes are the real measure of patriotism. That is what the 
chicken hawks do. That is the easy road.

[[Page 2245]]

  It is the same easy road we see when someone files for five student 
deferments and then claims an old football injury should prevent him 
from fighting for his country. Only a chicken hawk would attack a 
political rival who lost three limbs in Vietnam as being soft on 
defense.
  So I say to my colleagues on the other side of the aisle, we are not 
going to put up with these insinuations that attack our patriotism, our 
support for our troops, anymore. Because real patriotism and real 
support for our Nation's defense should not be judged on whether we 
ignore our constitutional duty and rubberstamp legislation. Real 
patriotism and support for the defense of this country has to do with 
answering the call. In my view, as a fellow veteran, the Senator from 
Massachusetts not only answered the call to fight for his country, but 
also to perform his duty and judge legislation on its merits.
  I served in the Army. It doesn't mean I should approve $1,500 toilet 
seats or poorly designed military equipment that is being procured 
simply because of political influence. In fact, I believe because I 
served, I have the duty to the men and women who are now in the 
military to make sure our military is strong and is as free from waste 
and corruption as possible, and our military men and women are 
protected to the fullest extent possible during their service and, when 
they are veterans, to provide for their health care needs and other 
services without question.
  Our job is to think as Senators and not to bow to everything defense 
contractors or Pentagon officials want. The Senator from Massachusetts 
has voted for plenty of defense spending increases, but he has also 
voted to prevent bad programs from moving forward. He does his duty to 
his country and to his constituents.
  The way I see it, the President and his proxies are attempting to 
bring American politics back to the days of dirty tricks. We saw it in 
2000, not against just Al Gore but also against the most serious 
Republican challenger, the Senator from Arizona. The Bush campaign 
coordinated attacks on the Senator from Arizona that questioned his 
commitment to our troops. Outrageous. An attack on a man who not only 
fought for this Nation but spent years as a prisoner of war. They 
didn't stop there. They even attacked the Senator's family. It was a 
new low in modern American campaigning.
  I want the administration and its allies in Congress to know we are 
not going to put up with these despicable insinuations and dirty 
campaigning. From now on, they question our commitment to our troops 
and the defense of this Nation at their own peril.
  We saw it just the other day, I think it was yesterday. In a speech 
that was publicly televised, those members of the NEA, the National 
Education Association, who stick up for the quality of our teachers, 
for their ability to earn a living, for the ability to take the courses 
they need--to talk about them as terrorists? That is no different than 
the chicken hawk line I just talked about.
  With that, I will yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, it is my understanding we are considering 
S. 2061, with 10-minute allocations of time for each Senator who is 
recognized?
  The PRESIDING OFFICER. The Senate is debating the motion to proceed 
to that measure. An order has been entered limiting Democratic Senators 
to 10 minutes each.
  Mr. DURBIN. Mr. President, I rise pursuant to that order to speak for 
10 minutes about S. 2061. This bill which is pending before the Senate 
addresses a very serious national issue of medical malpractice. Medical 
malpractice insurance premiums have increased in my State of Illinois 
and across the Nation. Because of those increases, a lot of good 
doctors have been forced to a position where they have to retire or 
relocate their practices. I have met with those doctors. I understand 
the problems and dilemmas they face. I think we need to address that 
here in the Congress. This point is dramatized by the fact that the 
bill before us is unfortunately not a bill which has been the product 
of any effort to find compromise or common ground or bipartisan answer 
to this national challenge.
  This bill without referral to committee was sent to the floor of the 
Senate. It is a bill which, frankly, was introduced by Senator Gregg of 
New Hampshire, a bill which ordinarily would have been referred to the 
Senate Judiciary Committee. The bill did not go to that committee. 
Senator Gregg does not serve on that committee. The bill was sent to 
the floor. I am afraid what this bill is all about is trying to make 
certain we make a record rollcall on this issue so that those who are 
supporting this bill will go back to some members of the medical 
committee and say all Senators who voted against it don't want to help 
you with increasing medical practice premiums. That couldn't be further 
from the truth for this Senator.
  I have strong feelings about what we need to do. I believe we need to 
be doing something. We need to address the issue in a comprehensive 
way. We shouldn't be afraid to look at all aspects of this challenge.
  The first aspect of this challenge is that there are too many medical 
errors today in hospitals and doctors' offices across America. Don't 
take my word for it. The Journal of the American Medical Association 
reached that conclusion and said medical errors are of epidemic 
proportions across America. The Institute of Medicine estimated that in 
any given year, 24,000 to 98,000 Americans lose their lives because of 
medical negligence. This bill doesn't even address that issue. It 
addresses medical malpractice in a courtroom. It doesn't address it in 
a doctor's office or in a hospital.
  The first thing we should do is see how can we work with the medical 
community and the hospitals to reduce errors, reduce negligence, and 
reduce the incidence of these grievous injuries and death that occur as 
a result.
  Currently, when you look at the universe of possible medical 
negligence and the lawsuits filed as a result of it, a tiny fraction--
some 2 percent or less--end up in court. It means that 98 percent or 
more of the medical negligence that is committed in America does not 
result in a lawsuit.
  If we want to make certain we have fewer cases going to court, let us 
start at the beginning. Let us make the practice of medicine safer. 
This bill does not even address that issue.
  Second, if you are worried about the cost of medical malpractice 
premiums, isn't it reasonable to ask whether the insurance companies 
are treating doctors and hospitals fairly? This bill doesn't have a 
word in it about insurance companies and their responsibilities. Why 
are we afraid to even ask? Why wouldn't we have all the books open to 
find out whether what is happening to doctors' medical malpractice 
insurance is a result of some insurance practices which should be 
changed?
  The third element is tort reform. I used to practice law. I was a 
trial lawyer. I defended doctors for many years and hospitals--and I 
sued them. I have been on both sides of the table. I understand those 
lawsuits, or at least how they were conducted in Illinois 20 years ago. 
So I have at least a passing experience with this issue. I think in my 
practice I would never have considered taking a so-called frivolous 
lawsuit forward. It costs too much money. It takes too much time. You 
wouldn't want to put your plaintiff client through it, you wouldn't 
want to waste your time and money, and you would not want to run the 
risk at the end of the day that you would lose--or worse, be sanctioned 
by the court for raising a frivolous lawsuit. I think there are ways to 
stop it. A small percentage of lawsuits shouldn't be filed against 
doctors. This bill doesn't deal with frivolous lawsuits, and it should.
  The last element it should address in tort reform is one that I think 
is essential; that is, to make certain, while we try to reduce the 
likelihood of frivolous lawsuits, we don't close the courthouse door 
for those innocent patients who are the victims of medical negligence. 
That is what this bill does. This bill says that instead of a jury in 
your hometown deciding what your injury is worth, instead of your peers 
in

[[Page 2246]]

the community, your neighbors sitting in the jury box considering the 
evidence and the law and deciding what the value of your child's life 
is, or your child's health, we instead will make that decision here on 
the floor of the Senate. We will say that no matter what lawsuit you 
have filed for medical malpractice relating to OB/GYN, you cannot 
recover under any circumstances, regardless of what happened to you or 
the baby, any more than $250,000--$250,000 for pain, suffering, and 
disfigurement.
  Two-hundred and fifty-thousand dollars may sound to some like a lot 
of money. Let me give you a few specific examples of cases I know of, 
and you decide whether $250,000 is a lot of money.
  A settlement was reached last Friday in Chicago--a city I am honored 
to represent--in the case of Evelyn Arkebauer who gave girth to a 
quadriplegic son, Andrew ``A.J.'' Arkebauer, on October 4, 1998. Evelyn 
went into labor at 5:30 in the morning with her second child. She had 
her first child by Cesarean section, so there was a risk for uterine 
rupture. Early in the afternoon, the doctor began to administer Pitocin 
to speed up labor.
  At 6:15 p.m.--more than 12 hours later--the doctor cut off the 
Pitocin and told Evelyn to start pushing. Evelyn pushed for more than 
an hour and a half and was rolled from her back to her side as the 
baby's heart rate fluctuated during this labor.
  At 7:53 p.m.--more than 12 hours into labor--the doctor decided an 
emergency C section was necessary and paged the anesthesiologist to 
come to the delivery room. The anesthesiologist failed to return the 
page and numerous pages after that.
  Finally, an hour after the doctor had decided on an emergency C 
section, the anesthesiologist showed up and the procedure began. The 
doctor discovered that the uterus had already ruptured. The baby had 
been without oxygen for 10 to 15 minutes. This baby is quadriplegic and 
spastic. He cannot walk, talk, or feed himself and will require full-
time care for the rest of his life on Earth. This baby had no injury to 
his cerebrum, so he has normal cognitive thought, meaning he thinks 
like a normal child but is trapped in a body he cannot use.
  During the trial, a nurse working the night of Andrew's birth 
testified that the anesthesiologist was with her in a private room on 
the hospital's fourth floor and that he ignored three different pages 
to respond to this emergency C section before going to the fifth floor 
delivery room where Evelyn was. This baby--quadriplegic and spastic for 
the rest of his life with a mind that is functioning--has a body that 
cannot be used.
  This bill, S. 2061, says the jury of the Senate will decide the cases 
exactly like this--that that baby and that baby's family can recover no 
more than $250,000 for a lifetime of pain and suffering. That is not 
fair. It is not just. It is not reasonable. It may reduce medical 
practice premiums but at the cost of justice.
  Gina Santoro-Cotton was 29 years old and pregnant with her first 
child. Her prenatal course was normal. She was admitted to the hospital 
1 week after her due date to induce labor. The drug Pitocin was used. 
Within a few hours of starting Pitocin, deceleration of the baby's 
heart rate was noted. The Pitocin was not stopped, which is normally 
done when there are signs that the baby is in distress.
  By early afternoon, the fetal monitor strips showed signs of oxygen 
deprivation to the baby--a clear warning sign. The Pitocin was still 
not stopped. At 2:45 p.m., the baby had a prolonged drop in his heart 
rate. The Pitocin was finally stopped and the baby was resuscitated in 
its mother's womb.
  Within hours, the Pitocin was restarted, and decelerations and other 
signs of poor oxygenation to the baby appeared. Rather than stopping 
the Pitocin, the dose was increased.
  At 7:30 p.m., there were still severe decelerations on the fetal 
monitor strips. Pitocin was increased.
  At approximately 9:45 p.m., Pitocin was finally stopped and the baby 
was delivered. The baby was near death at the time of delivery.
  Today, that baby is 6 years old and permanently disabled. He has 
severe cognitive dysfunction and is partially paralyzed in all four of 
his extremities. He has motor problems, and he can't walk. His speech 
is not understandable. He is fed through a tube in his stomach because 
he cannot feed himself. He has paralysis of the vocal cords. He 
requires care 24 hours a day and extensive therapy.
  There are Senators who come to the floor and talk about cases just 
like this and call it jackpot justice, arguing, I guess, that the 
parents of that little baby, who will be functionally impaired for his 
entire life, will never be able to express himself, will never be able 
to feed himself or walk--that the parents of that baby, if they recover 
a verdict in court, have somehow won a jackpot. How many of us would 
want to buy a ticket for that jackpot? How many of us would sacrifice 
the health of any child, let alone our own children, with the prospect 
of recovering a verdict?
  This bill before the Senate has said that in cases just like this, no 
matter how serious, no matter how long that baby lives, no matter what 
conditions that baby faces, the rest of its natural life, the sum total 
and value of the pain and suffering of that baby and its family can 
never, ever, be worth more than $250,000. And if that baby, who is now 
6, lives 20 years, is it worth $10,000, $12,000, $1,000 a month for 
what that family will go through? I don't think so.
  Let me discuss one last case. Terri Sadowski was pregnant with her 
second child. At 34 weeks, she went into preterm labor and had a 
rupture of her membranes. Medication was not successful in stopping her 
labor so she was transferred from a community hospital to a high-risk 
referral center, to the care of a perinatologist, a specialist in high-
risk pregnancies.
  The perinatologist decided to let Terri proceed with labor and 
deliver normally even though the baby was in a breech position. The 
doctor also decided to administer Pitocin, a medication to bring on 
contractions. Within 3 hours of starting the Pitocin, the fetal heart 
rate began to show signs that the baby was in distress. A normal heart 
rate for a baby in the mother's womb is 120 to 160 beats per minute. 
This baby's heart rate was dropping in the 70s. By the time Terri was 
ready to start pushing, the fetal monitor strips showed significant 
fetal heart rate decelerations with a consistent heart rate in the 60s 
and 70s. Despite the overwhelming evidence that the baby was in severe 
distress, a decision to perform a C section was not made for 40 
minutes.
  An emergency C section was done but the baby had no movement and was 
unresponsive. She developed seizures shortly after birth. She sustained 
severe brain damage due to lack of oxygen in labor in delivery. Had the 
perinatologist performed a C section, the baby could have been a 
normal, healthy baby.
  The baby lived for 1 year in a vegetative state. During her short 
life, she had multiple hospital admissions for pneumonia, bowel 
obstructions, unable to suck, and she required tube feedings and 
constant suctioning to keep her airways clear. At the time of death, 
she had frequent seizures.
  Think about this for a moment. Think about the happiness each of us 
has been lucky enough to experience in life from a family and children. 
And think about something going wrong in that delivery room, something 
that results in a baby facing a lifetime--long or short--in a terrible 
situation.
  The parents were not at fault. They were not at fault in any of these 
cases. Eventually they went to court and asked for compensation for 
what they would face for medical bills, what they would face for pain 
and suffering, and a jury from their community decided what it was 
worth.
  This bill says it really should not be a decision of a jury, it 
should be a decision of the Senate, a one-size-fits-all, one solution 
for every problem, $250,000, take it or leave it. That is not right.
  I say to my friends in the medical profession, I know you are not 
perfect,

[[Page 2247]]

you are humans; you do make mistakes. Quite honestly, those who have 
dealt with doctors and have great respect for them know that the 
overwhelming majority of doctors are good men and women, well trained, 
dedicated to their profession, who make sacrifices every single day way 
beyond those called on by Members of the Senate.
  Having said that, doctors I have spoken to understand that even 
giving it their best, occasionally they make a mistake in judgment--
they do not know enough, they did not do the right thing--and terrible 
things occur. And most of them, under those circumstances, say yes, in 
those cases, people who are the victims of that kind of a circumstance 
should be compensated. I certainly believe that. It is not fair to 
establish an artificial limit and say that no matter what happens to 
that baby or that mother, there will never be another nickel beyond 
$250,000; a lifetime of pain and suffering limited to $250,000 in 
recovery.
  To my friends in the medical profession who have a genuine concern, 
as they should, about the increase in medical malpractice premium 
rates, let me say you are not going to get any favor with this bill. 
This bill is being offered for reasons I cannot explain. It is being 
offered in the name of OB/GYNs across America who certainly do need 
help and need it now. But it is a bill that also includes immunity and 
relief from liability for pharmaceutical companies and medical device 
companies. I am sorry, but I have not heard anyone with a hue and cry 
about a crisis when it comes to these companies dealing with medical 
malpractice claims. But, naturally, they are included here because most 
bills that come through have to have a provision to help drug 
companies. They are the poster kids when it comes to this Congress. We 
are always going to find ways to help them.
  For once, why don't we try to help the families who are the victims? 
And why don't we try to help the good doctors who need a helping hand?
  I will make this statement in closing before I yield the floor: I 
want to work with those Members of the Senate on both sides of the 
aisle who in good faith want to address this issue. We can do things to 
deal with this. We must do them. We should do them now. This bill is 
not the way. This bill is a bad start. It is better to come together, 
off the Senate floor, try to find common ground and compromises on a 
bipartisan basis to protect the medical profession, on whom we all rely 
so much. We want to give the men and women in that profession, who have 
given their lives to serving us, a chance to practice medicine without 
skyrocketing premiums, but to also say to the families and patients who 
come to these doctors and these hospitals, we will not abandon you in 
the process.
  There is reason to believe we can find this common ground. This bill 
is a bad start. It is likely to be defeated today. Once defeated, I 
hope Senators who believe, as I do, that we should address this issue 
will come together to try to find that common ground.
  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. DURBIN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I ask unanimous consent that when the 
Senate goes into a quorum call, the time for the quorum call be equally 
divided between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


    the birth of senator byrd's fourth and fifth great-grandchildren

  Mr. DASCHLE. Mr. President, later this afternoon, many of us will 
have an opportunity to see one another after the recess. I will make a 
prediction that we will notice a special twinkle in Senator Byrd's eye 
as we visit with him this afternoon. There is good reason. Actually, 
there are two very good reasons.
  In the last month, Senator Byrd became a great-grandfather for the 
fourth and fifth times. Hannah Byrd Clarkson was born 4 weeks ago 
today, on January 27, weighing 10 pounds 3 ounces.
  Hannah is the second child of another member of our Senate family, 
Mary Anne Clarkson, of the Bill Clerk's Office, and her husband James 
Clarkson. She joins her older sister Emma.
  Hannah's cousin, Michael Yew Fatemi, was born on February 11. Michael 
is Senator Byrd's fifth great-grandchild, and his first great-grandson. 
He is named in honor of his uncle John Michael Moore, Senator Byrd's 
beloved grandson, who died in a car accident. Michael is the first 
child of Senator Byrd's grandson Fredrik Fatemi, and his wife Jinny.
  Few people live long enough to see and hold even one of their great-
grandchildren. To be able to welcome five of them into the world is a 
rare blessing, indeed.
  I was deeply touched by Senator Byrd's kind words to me and my family 
on the births of my grandchildren, Henry and Ava.
  I am sure I speak for the entire Senate family--and people throughout 
America--in wishing Senator Byrd and his wife Erma many happy hours 
with Hannah, Michael, and all of their family members.
  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. BOND. 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. BOND. Mr. President, going to the doctor for a checkup is hard 
enough these days between juggling family and work schedules. Few of us 
get all the checkups and screenings we need. Making matters worse, more 
and more doctors are closing their practices or limiting the services 
they offer.
  They are doing so because they cannot afford the increasing costs of 
medical malpractice insurance which they are required to carry.
  According to the American Medical Association, 19 States are in a 
full-blown medical liability crisis, including the home State of the 
occupant of the chair and mine.
  In Missouri, physicians' average premium increases for 2002 was 61 
percent on top of increases the previous year of 22 percent. What 
happens? Well, 31 percent of the physicians surveyed by the Missouri 
State Medical Association said they were thinking about leaving their 
practice altogether.
  Almost one in three physicians in Missouri considered leaving their 
practice because they cannot afford the exorbitant medical malpractice 
insurance cost caused by the lawsuits brought--some frivolously, and 
many of them, I assume, against doctors. Doctors who have practiced for 
years in Missouri are closing their doors.
  But this is not just a problem for doctors. They are well educated. 
They can move elsewhere and resume their practice, as difficult and 
unfair as that is. The real damage and pain is being felt by the 
patients.
  Last summer we considered a comprehensive bill, S. 11, the Patients 
First Act. Unfortunately, the motion to proceed was not successful. 
Because this issue is so critical to the health care of all Americans 
and because the crisis continues to grow, inaction should not be an 
option because the outcome of considering the same comprehensive reform 
bill again is clear.
  Today we have narrowed our focus on the health care needs of women 
and babies.
  The American College of Obstetricians and Gynecologists last year 
said:


[[Page 2248]]

       An ailing civil justice system is severely jeopardizing 
     patient care for women and their newborns. Across the 
     country, liability insurance for OB/GYNs has become 
     prohibitively expensive. Premiums have tripled and quadrupled 
     practically overnight. In some areas, OB/GYNs can no longer 
     obtain liability insurance at all, as insurance companies 
     fold or abruptly stop ensuring doctors. When OB/GYNs cannot 
     find or afford liability insurance, they are forced to stop 
     delivering babies, curtail surgical services or close their 
     doors. The shortage of care affects hospitals, public health 
     clinics, and medical facilities in rural areas, inner cities 
     and communities across the country.

  It is a real problem in Missouri. A survey conducted by the American 
College of Obstetricians and Gynecologists in August of 2002 said 55 
percent of their members from Missouri have been forced to change their 
practice, retire, relocate, decrease surgery, stop practicing 
obstetrics, decrease the number of deliveries, and decrease the number 
of high-risk obstetric care.
  Last year, Missouri lost a total of 33 obstetricians. I want to share 
with you a few examples.
   A St. Joseph, MO, practice, the only practice in Northeast Missouri 
to accept Medicaid, lost one-third of its doctors after the insurance 
company would no longer offer insurance to OB/GYNs. St. Joseph now has 
only seven OB/GYNs serving its population.
   A Missouri doctor who has been in private practice for 3 years 
experienced a 400 percent increase in his liability premiums over the 
past 3 years and received a quote for $108,000 in 2004. This OB/GYN is 
considering quitting obstetrics in order to find affordable insurance.
   A gynecological oncologist in Missouri left a group practice and 
eliminated a rural outreach clinic because of rising professional 
medical liability premiums. ``Women with gynecologic cancers in Ste. 
Genevieve, Carbondale, and Chester now have to drive over 100 miles to 
see a gynecologic oncologist and receive the care they deserve,'' said 
the doctor.
   An OB/GYN in St. Ann, MO, was forced to close his practice last year 
because of medical liability costs that rose 100 percent. The practice 
had delivered about 400 babies a year.
   Twelve doctors at the Kansas City Women's Clinic used to serve women 
in both Missouri and Kansas. But, because of rising medical liability 
insurance rates, the clinic could not find a single company that would 
offer them a medical malpractice insurance policy they need for their 
office in Missouri.
  I should say parenthetically, I have been approached by some lawyers 
who practice medical malpractice plaintiff cases, and they said: The 
problem is the insurance companies are making too much money. It is not 
the lawyers. That is strange when the insurance companies can't even 
stay in business. They can't stay in business because of the lawyers.
   As a result at the end of 2002 they closed their doors to their 
Missouri patients. There were over 6,600 visits a year in their 
Missouri office. Now, these women must either travel to Kansas to see 
their OB/GYN or find a new doctor elsewhere in Missouri.
   Two Kansas City, inner city OB/GYNs who serve low-income, high-risk 
patients had to sell their practices to their hospital in order to 
continue to see patients in Missouri. Excessive litigation has created 
an environment that forced two doctors--committed to serving some of 
the most vulnerable women in Kansas City--out of business. They are no 
longer in independent practice.
   One OB/GYN practice in Missouri had to take a $1.5 million loan to 
pay the malpractice insurance for this year. That does not even include 
the cost of the tail coverage.
   Other doctors in Missouri are considering going without insurance 
for their tail coverage because they simply can't afford the premiums.
   Women are having a hard time getting the care they need and 
communities are losing their trusted doctors. We have a health care 
system that is in crisis in Missouri.
   The bill before us today, the Healthy Mothers and Healthy Babies 
Access to Care Act is narrowly crafted to protect access to prenatal, 
delivery, and postnatal care for women and babies by reducing the 
excessive burden the liability system places on the delivery of OB/GYN 
services.
  This bill will protect the right of an injured patient to recover 
fair compensation while at the same time prevent clear lawsuit abuse.
  The bill protects the right of injured patients to receive full 
economic damages that cover the out-of-pocket expenses that a victim 
might incur due to a doctor's negligence, such as hospital costs, 
doctor bills, long-term care, other medical expenses, and lost wages. 
This bill also includes a $250,000 cap on noneconomic damages, with 
deference to existing and future State caps.
  This bill maximizes the amount of awards received by injured patients 
by limiting attorney's contingency fee to a reasonable, sliding scale.
  Too often large percentages of an injured patient's award go to 
attorneys, leaving the patient with less money for their medical care 
and other needs. Injured patients are entitled to an overwhelming 
amount of their award after settling or winning a lawsuit.
  Currently, lawyers in many States can take up to 40 percent of all 
awards and settlements, robbing the injured patients of their award. We 
think by protecting injured patients by limiting lawyers to 15 percent 
of any payment over $600,000 makes good sense.
  These are just a few of the many vital reforms contained in this 
bill.
  I urge my colleagues to protect access to quality health care for 
women and babies and support the Healthy Babies, Healthy Mothers Access 
to Care Act.
  We cannot afford to have OB/GYNs to continue closing their practices, 
reducing the number of babies they deliver or eliminating care for 
high-risk patients, the uninsured, and the underinsured because of 
excessive frivolous lawsuits brought by plaintiff attorneys.
  Ms. MIKULSKI. Mr. President, I oppose S. 2061, the Healthy Mothers 
and Healthy Babies Access to Care Act. It should be called the 
``Insurance Companies First Act.'' This is extreme legislation that 
puts the interests of the insurance industry ahead of the interests of 
women, their families and their doctors. It applies only to women 
seeking obstetrics and gynecological services--that's it. Every other 
patient can recover full damages. But under this bill only women will 
be limited in what they can recover for a doctor's medical error. This 
bill penalizes patients, while doing nothing to prevent doctors from 
being gouged by insurance companies.
  This bill is legislative malpractice. First of all, the procedure for 
considering this bill is seriously flawed. The bill was brought to the 
full Senate without hearings, without consideration by the Judiciary 
Committee. There was no chance for patients, doctors or others affected 
by this bill to testify. There was no Committee Report to analyze the 
effects of the extremely complex and controversial legislation.
  The result is a bill that targets some of the most serious cases of 
medical error, restricts the rights of women and infants, while doing 
too little to protect doctors from the high cost of insurance. It is 
the same broad brush legislation that we defeated in July, only this 
time they limit it to obstetrical and gynecological services and by 
design only restrict the rights of women patients. Proponents of the 
bill say they wanted to streamline the bill, to address the area of 
medicine with one of the highest premium rates and they claim that the 
beneficiaries will be women who will have improved access to health 
care. But since when has limiting one's rights improved anything? And 
how does restricting a woman's right to full recovery and only her 
rights provide her a benefit?
  The real beneficiaries of this bill are the insurance companies. They 
get to see their profits soar while mothers who take care of infants 
who suffer because of medical error will face unfair caps in the 
remedies they receive. These are often stay at home mothers who need 
resources to care for their families and their infants who may need 
constant care, but the cap on non-economic damages will prevent them

[[Page 2249]]

from getting those resources. It's unfair to penalize these women 
because they can't recover economic damages. I think the Senate can do 
better.
  I oppose this legislation for three reasons:
  As a Senator from Maryland, I cannot support legislation that gives 
Marylanders a worse deal. This legislation would override the Maryland 
law and place a $250,000 cap on non-economic damages. Maryland law 
strikes an important balance, providing a much higher cap on non-
economic damages. The cap increases each year to offset inflation. It 
started at $500,000 and is now $635,000. It also has no caps on 
punitive damages. The Maryland law is supported by both physicians and 
patient advocates.
  Yet the Republican bill would preempt Maryland law. It would put 
women and infants in Maryland at a disadvantage. It would severely 
limit their ability to get relief for the death, physical impairment or 
disfigurement that they suffer as a result of serious medical error.
  This legislation shuts the court house door. It denies justice to 
women and women only. It denies justice to those who must care for a 
mentally disabled child for his or her whole life because of a doctor's 
mistake during prenatal or post-natal care. It denies justice to women 
who needlessly lost a child during delivery because of a serious 
medical error. It does this by imposing arbitrary caps instead of 
enabling juries to determine damages. I have faith in juries made up of 
members of the community to reach a fair verdict.
  Who would be hurt by this legislation?
  Someone like the mother from Baltimore whose newborn baby suffered 
brain damage because an emergency c-section was not performed in time. 
His mother had gone to the hospital reporting that there was decreased 
fetal movement. She knew something was wrong. Tests were performed. Yet 
the doctor misdiagnosed the problem. After several days, an emergency 
c-section was performed. It was too late. The baby suffered severe 
brain damage. He died 13 months later.
  It is impossible to put a price on the loss of a child. Imagine if 
that death is the result of carelessness. Parents who suffer the 
unbearable pain of losing a child deserve the right to use the courts 
to seek full accountability.
  Instead of penalizing patients, we need legislation to help doctors 
who are facing skyrocketing insurance costs. A doctor's number one 
priority is the care of his or her patients. We should make sure that 
it is easy for them to do so, knocking down the roadblocks to practice 
that excessive insurance premiums create. S. 2061 won't do that. It 
won't provide doctors with real relief today.
  That's why the Senate should consider alternatives such as that 
proposed by Senator Durbin, which focuses on solving the problems where 
they start. Senator Durbin addresses the root of the problem, creating 
greater accountability for doctors through a voluntary error reporting 
database, economic help for those who face growing premiums, punishment 
for frivolous lawsuits, grants to provide physicians in areas where 
malpractice insurance has led to a shortage of doctors, and critically, 
an end to the immunity that insurance companies face from anti-trust 
regulations.
  Yet instead of helping patients and doctors, the Senate is again 
caught up in a political game. It doesn't have to be this way. We have 
worked together in the past to pass legislation that helps victims and 
lowers insurance costs. The terrorism insurance legislation is a prime 
example. We passed it because there was a national will and the urgency 
to do something that provided real solutions.
  Today, we are faced with the same national will. And I urge my 
colleagues to work toward a sensible compromise. One that does not 
unfairly target women and their infants. One that addresses all forms 
of medical error, not just those affecting women and puts the rights of 
all patients first. The public is demanding that we do something, as 
more Americans are suffering from serious medical mistakes and more 
doctors are unable to treat patients because of rising premiums. We now 
need the political will to help doctors without harming patients.
  I urge my colleagues to vote no on cloture. We need to send this bill 
back to the Judiciary Committee for full consideration of the issue of 
medical liability as well as the impact of limiting women's rights to 
recovery on their health and well-being and that of their new born 
infants.
  Mr. LAUTENBERG. Mr. President, I rise to talk about the bill that is 
the subject of today's cloture vote on the motion to proceed.
  We must not be fooled by the seemingly friendly title of this bill. 
The Healthy Mothers and Healthy Babies Access to Care Act of 2003 does 
nothing to promote the health of mothers or babies. This bill will 
devastate the rights of parents and children, but it will help neither 
patients nor doctors. The real beneficiaries will be insurance 
companies, HMOs and large medical corporations. Sponsors of this bill 
insult us by calling it a Healthy Mothers and Healthy Babies Act. How 
can shielding from accountability an entire medical specialty area 
result in healthy babies? Less accountability will never lead to better 
health care.
  This bill discriminates against women and infants by restricting 
their right to hold physicians, hospitals, insurance companies, HMOs, 
and even drug and medical device manufacturers fully accountable for 
injuries resulting from the provision of obstetrical and gynecological 
care. Although proponents of the legislation say the bill is necessary 
to increase access to women's health care, nowhere does the bill make 
liability insurance for doctors more available or affordable. And 
nowhere does it provide access to health care for women who are 
uninsured. What it does do is greatly limit the ability of women and 
children with the most devastating injuries to hold the wrongdoer 
accountable.
  It is another example of what I call the ``maleogarchy'' that 
prevails around here placing a higher value on a man's worth than a 
woman's. The bill cynically devalues the worth of pregnant women 
injured by medical negligence. Men's injuries are given full value. For 
example, if a woman is inappropriately prescribed blood pressure 
medication during pregnancy that causes blood clots, her recovery is 
limited under the bill's provisions. If a man is prescribed the same 
defective blood pressure medication by his internist, he may recover 
against the drug manufacturer in accordance with available State law 
remedies.
  The legislation unfairly reduces the amount of time that an injured 
woman has to file a lawsuit. Under the bill, a suit would have to be 
filed no later than 1 year from the date the injury was discovered or 
should have been discovered, but not later than 3 years after the 
``manifestation'' of injury. Thus, a pregnant woman who contracted HIV 
through a transfusion but only learned of the disease 4 years after the 
transfusion would be barred from filing a claim. In addition, the bill 
limits the rights of injured newborns by requiring that actions on 
their behalf be brought within three years from the date of the 
manifestation of injury. This is in direct contradiction to the laws of 
many States, which preserve the rights of minors to seek legal redress 
upon the age of majority.
  The bill limits non-economic damages to $250,000 in the aggregate, 
regardless of the number of parties against whom an action is brought. 
Noneconomic damages compensate patients for very real injuries such as 
the loss of fertility, excruciating pain, and permanent and severe 
disfigurement. They also compensate for the loss of a child or a 
spouse. These are very real damages, and juries are able to calculate 
them fairly. How do you calculate the economic damages to infants who 
sustain life-long injuries during childbirth or stay-at-home mothers 
who lose their fertility due to a defective drug taken during the 
course of pregnancy? Their injuries may be almost completely non-
economic and this bill would have a devastating impact.
  This bill is an appallingly cynical attack on the rights of mothers 
and their

[[Page 2250]]

babies. In many ways, it is even more insidious than the bill that 
failed in the Senate last July. It is almost as if the proponents of 
that bill, having failed to eliminate the rights of all patients 
injured by negligence, decided they would simply target the rights of 
the most vulnerable: pregnant mothers and their babies.
  Mrs. MURRAY. Mr. President, today the Senate is voting on a political 
gimmick that will punish women and children and do nothing to address 
the real medical malpractice crisis that is crippling healthcare 
throughout our State.
  Doctors are facing escalating costs that are unsustainable, but 
instead of addressing this problem with a common-sense and immediate 
fix, the majority is engaging in a blame game. We don't have time for 
the blame game. Instead, we should be debating the bipartisan bill I 
support to provide immediate relief to doctors, stop frivolous 
lawsuits, and fix the broken insurance market.
  But this bill doesn't just fail to address the real crisis in 
malpractice insurance; it actually undermines the rights of women and 
children in the name of helping them.
  As a woman, a mother, and a Senator who has fought for the safety and 
welfare of mothers and infants, I am disturbed that the U.S. Senate 
would single out women and babies for different treatment than everyone 
else in America if they are injured through no fault of their own. This 
bill tells women that if we are injured, we don't deserve the same 
legal protections as men.
  The sponsors of this bill have spoken about the health and well-being 
of women and babies in hypothetical terms. But I have to tell you, the 
injuries and crimes that continue to plague female patients are all too 
real.
  Currently, in my State of Washington, we are following a high-profile 
case in which an OB/GYN has been accused of raping or molesting dozens 
of female patients under his care. This doctor is also accused of 
providing substandard care, ranging from performing unnecessary medical 
procedures to failing to prescribe prenatal vitamins to a pregnant 
patient with low iron levels.
  In one case, this doctor even performed a surgery despite the fact 
that his office was not licensed for surgery and did not have a supply 
of blood available in case of complications.
  I ask my colleagues to consider this case. If your wife or daughter 
or sister had been hurt, molested or worse by this doctor, would a 
$250,000 cap seem like a reasonable solution?
  These cases are not hypothetical. They are not frivolous. And this 
bill will not protect the health or increase the wellbeing of any of 
these patients.
  I find some sad irony in being told by this bill's sponsors that if I 
want to help women and babies, I should strip away their rights. I take 
a backseat to no one when it comes to standing up for women and 
children.
  I wish that the people who are pushing this bill today had shown the 
same interest when I was fighting to ensure women could get direct 
access to an OB/GYN during the Patients Bill of Rights debate, but 
instead, they killed that effort. I wish they had shown the same 
interest in 1999 when I offered an amendment to end drive-through 
mastectomies, but they killed that effort as well. I wish this bill's 
sponsors had showed the same concern when I was fighting to improve 
drug labeling for pregnant women, but instead, they killed that 
proposal as well. They weren't on the side of women during all those 
fights, but here they are today, using the real shortage of OB/GYNs and 
the real malpractice crisis as an excuse for punishing women and babies 
without giving doctors or patients the help they desperately need.
  If the sponsors of this bill are now serious about helping ensure 
healthy women and babies, I say ``Come on over!'' I've got a long list 
of legislation that they can sign onto today to really help women--like 
extending Family and Medical Leave, boosting the federal Medicaid match 
for OB/GYNs, and expanding Medicaid and the Children's Health Insurance 
Program, CHIP, for low-income pregnant women. The single most important 
step to ensure a healthy pregnancy and a healthy baby is prenatal care. 
Fully-funding and expanding CHIP would provide this care to low-income 
women who would otherwise go without.
  The saddest part of this exercise is that we should be spending this 
time discussing a real solution, like the bipartisan bill I am 
cosponsoring with Senators Graham and Durbin, the Better HEALTH Act, S. 
1374. If the Senate leadership really wants to help doctors and 
patients, they will bring up the widely-supported Graham-Durbin bill 
for a vote and stop playing games at the expense of women and babies. 
Every day they deny a vote on this bipartisan bill speaks volumes about 
their interest in a real solution.
  The Graham-Durbin bill would give doctors an immediate 20 percent tax 
rebate on their malpractice premiums, provide federal help for a broken 
insurance market, and block frivolous lawsuits. That's the type of 
comprehensive, immediate and effective solution our doctors, patients 
and communities deserve.
  My action plan to fix the malpractice crisis has four steps. The 
first thing we have to do is get doctors and hospitals some immediate 
relief--because the clock is ticking. Even if proposals to cap non-
economic and punitive damages were passed this year, it is impossible 
to predict when--if ever--doctors and hospitals would see relief. That 
is not good enough for me, and it is not good enough for the doctors in 
my community. I want doctors and hospitals to get immediate relief.
  Under the Graham-Durbin bill, doctors in high-risk specialties would 
be eligible for a tax credit that's 20 percent of their malpractice 
premium. Doctors in lower-risk specialties would get a 10 percent tax-
credit. For-profit hospitals would get a 15 percent tax credit, and 
non-profit hospitals would get new grants. Immediate financial relief 
directly to doctors and hospitals must be part of any solution to the 
malpractice crisis.
  Second, we have to cut down on frivolous lawsuits. Under the Graham-
Durbin bill, every plaintiff attorney that files a medical malpractice 
case would be required to include an affidavit by a qualified health 
care professional verifying that malpractice has occurred. No more 
launching lawsuits that don't have merit. And anyone who violates this 
affidavit is going to be punished with strict, and increasingly harsh, 
civil penalties. We are not going to tolerate frivolous lawsuits, and 
that's the second part of the Graham-Durbin bill.
  Third, we need to provide additional protections for doctors who are 
doing the right thing and serving patients through Medicare, Medicaid 
and S-CHIP. Doctors with a 25 percent caseload of Medicare, Medicaid, 
and State Children's Health Insurance Program, SCHIP, patients would be 
protected from punitive damages under the Graham-Durbin bill. 
Exemptions would only be allowed for cases involving sexual abuse, 
assault and battery, and falsification of records. Other than that 
there will be no punitive damages for doctors who are doing the right 
thing and serving Medicare, Medicaid and SCHIP patients.
  Finally, the Graham-Durbin bill says the Federal Government should 
underwrite some of the risk in malpractice insurance--just as we have 
with terrorism and flood insurance. Doctors and hospitals should not 
have to shoulder the burden of a broken insurance market.
  If the Senate leadership is serious about helping doctors and 
patients, it will bring up the bipartisan Graham-Durbin bill. It 
provides immediate and direct financial relief to doctors and 
hospitals. It cuts down on frivolous lawsuits. It limits liability for 
doctors with high Medicaid caseloads, and it provides Federal help for 
a broken insurance system.
  As I have done for the past 10 years, I will continue to advocate for 
the policies that truly help women and infants and I will continue to 
stand up for my doctors, patients and communities who deserve an 
immediate, comprehensive solution to the malpractice insurance crisis. 
I welcome the support of any Senator who wishes to sign onto the 
legislation I have outlined today.
  Mr. ALEXANDER. Mr. President, I express my concern once again with

[[Page 2251]]

the rising cost of medical liability insurance. Last July we debated 
this issue in the Senate, and unfortunately did not reach cloture on 
this important issue. Today we are limiting our debate on the issue to 
care for mothers and babies. We must protect a woman's access to 
obstetric and gynecological care to ensure healthy mothers and babies. 
The increasing cost of medical liability insurance is creating a 
patient access crisis because doctors are leaving the practice of 
medicine.
  At Hardin County General Hospital in Savannah, TN, the OB/GYN left 
the hospital to go practice in another state because the insurance 
premium was too high. High medical liability insurance is one more 
reason it is difficult to recruit specialists to rural areas.
  In 2002, the average net medical liability premium for an OB/GYN in 
Tennessee was $33,600. In 2003, the premium increased to $41,980, and 
in 2004, it increased again to $49,408. This is a 47 percent increase 
over the past 3 years. This sort of increased cost is not sustainable. 
I continue to be worried about who will deliver babies in my state.
  I believe that S. 2061, the Healthy Mothers and Healthy Babies Access 
to Care Act of 2004, will help protect access to care for mothers and 
babies in Tennessee. This bill will still allow unlimited economic 
damages, but it places a sensible cap on non-economic damages. I hope 
we reach cloture on the motion to proceed so that we can consider this 
very important legislation.
  Mr. BYRD. Mr. President, I am concerned about the increasing costs of 
malpractice insurance and a lack of access to medical providers in West 
Virginia and other States. The current challenges facing the medical 
malpractice system are complex and require a multifaceted solution.
  Unfortunately, this issue has become highly politicized with powerful 
interests pitted against each other. Patients and their doctors are 
being squeezed in the middle. It is long past time to give some peace 
of mind to patients and doctors alike who are caught in this political 
tug of war. We ought to have a wide-ranging debate in the Senate on how 
to best reform the medical liability and insurance system and also 
prevent medical errors.
  I am disappointed that the administration and the Senate leadership 
have adopted a take-it-or-leave-it and one-size-fits-all approach to 
this issue.
  Especially in more rural areas of this country, there is a serious 
shortage of doctors and a lack of access to quality medical care close 
to home. Too often, families must travel long distances to see a 
physician, and even farther if specialized care is required. I hope 
that, by proceeding to the medical malpractice bill, the Senate can 
have a constructive debate and reach a commonsense concensus on this 
important issue.
  Mr. CHAFEE. Mr. President, today I will vote in favor of invoking 
cloture on the motion to proceed to S. 2061, the Healthy Mothers and 
Healthy Babies Access to Care Act. My vote is not an endorsement of S. 
2061 as it was introduced in the Senate. In fact, I have concerns about 
various aspects of the bill including the $250,000 cap on noneconomic 
damages and I anticipate supporting amendments to S. 2061 if the Senate 
has an opportunity to fully debate this legislation.
  However, I do believe that reform of the medical liability system 
should be considered as part of a comprehensive response to surging 
medical malpractice premiums that endanger Americans' access to quality 
medical care by causing doctors to leave certain communities or cease 
offering critical services, such as obstetrical care. For this reason, 
I will vote for cloture on S. 2061 in an effort to move the debate 
forward.
  Mr. FEINGOLD. Mr. President, once again we are faced with an ill-
advised medical malpractice bill coming to the Senate floor without any 
committee consideration. Some argue that we have a malpractice 
insurance ``crisis'' that is driving doctors from the practice of 
medicine, particularly in the field of obstetrics and gynecology, or 
OB/GYN. But we have not yet explored that issue in the Senate at all. 
No committee has held hearings or marked up a bill on this topic. 
Instead, an extreme proposal has been brought directly to the floor and 
Senators are expected to vote for it because there is a crisis. That is 
not how the legislative process should work on an issue of importance 
to so many people.
  I would like very much for Congress to address the problem of 
malpractice insurance premiums once we understand the seriousness of 
the problem and the effectiveness of the proposed solutions. But by 
bringing this bill directly to the floor, the majority shows that it is 
not serious about addressing the problem. It just wants to play a 
political card. To the extent that there really is a malpractice 
insurance problem, what is going on here is a cynical exercise, 
designed only to fail and to provide fodder for political attacks. I 
will vote ``no'' on cloture.
  Ms. CANTWELL. Mr. President, I will not be voting for S. 2061, a bill 
that imposes very low damage caps on noneconomic damages in cases 
involving obstetrical services. I cannot support the bill before us 
today because I do not believe it would be effective in reducing the 
very serious problem that we have with rising medical malpractice 
premiums for doctors and hospitals in my State of Washington.
  The fundamental premise of the bill is that by placing a very low cap 
on the amount persons injured in obstetrics cases could receive for 
noneconomic damages, insurers would respond by reducing premiums for 
physicians and hospitals. However, multiple studies have now shown that 
premiums for physicians in States that have already imposed limits on 
damages continue to increase. According to the Medical Liability 
Monitor, overall, premiums are 6.8 percent higher for OB/GYNs in States 
with caps than States without caps, and premium increases last year 
were slightly higher in States with caps on damages, than in States 
without them. That is why the Seattle Times, the Seattle Post 
Intelligencer, The Tacoma News Tribune, The Everett Herald and the 
Bellingham Herald have all come out in opposition to $250,000 caps in 
the last 2 weeks. As the editorial board of the Spokane Spokesman wrote 
last June 4 about proposals to cap damages, ``No doctor would prescribe 
radical surgery based on anecdotes or conflicting data.''
  In the process of educating myself about this issue over the past 
year, including meeting with hundreds of Washington State physicians 
and hospital administrators, touring 29 rural hospitals, and reviewing 
the claims history of Physicians Insurance, Washington State's leading 
provider of malpractice insurance, I have asked many of these 
individuals what they believed the cap on damages should be. The fact 
that I have received answers ranging from zero to $5 million 
illustrates the difficulty in determining what a damage limit should be 
without reference to specific facts. I believe that juries made up of 
Washington State residents are better positioned to make a 
determination of appropriate compensation after hearing the facts of an 
individual case, than are Senators trying to find a one-size-fits-all 
solution. Washington State has the third best tort system in the 
country according to the Chamber of Commerce. Our State has long banned 
punitive damages, and as a result, capping noneconomic damages, without 
the knowledge of the jury, could lead to very unfair results for 
Washington State residents.
  Imposing a $250,000 cap on noneconomic damages is radical. The 
$250,000 cap is based on a California law that was enacted in 1975 and 
has never been adjusted for inflation. While I wish that it were not 
true, Washington residents are sometimes harmed by negligent care in 
the course of obstetrics cases, and they suffer genuine damages. 
Despite efforts to create an exception for the most serious and 
egregious cases, there is no exception in the bill before the Senate 
for even the worst cases. Noneconomic damages compensate patients for 
real injuries including the loss of fertility, loss of a child, or loss 
of a spouse, as well as for excruciating pain and permanent and severe 
disfigurement. Caps on noneconomic damages disproportionately

[[Page 2252]]

affect women and children because they lack the work history to make 
economic damages very meaningful.
  That is not to say that we do not have a very serious problem in our 
State. Individual physicians have experienced premium increases of up 
to 75 percent and hospitals have suffered even greater increases. 
Increases have hit specialists, including obstetricians, particularly 
hard. This adds to pressure already being felt by physicians and 
hospitals in our State as a result of our abysmal Medicare 
reimbursement rate. Washington currently ranks 41st in the Nation and 
receives only $4,303 per beneficiary. Physician practices are small 
businesses, and many of our hospitals are nonprofit entities. They 
cannot be expected to absorb these huge increases without help.
  That is why I support many measures that would actually help deal 
with the problem of rising insurance costs. I believe that we should be 
exploring the creation of best practices for physicians, which, if 
followed, would protect physicians from law suits. I also believe that 
specialized malpractice courts could be a useful tool in curbing abuses 
of the system.
  I also support legislation introduced by Senators Lindsey Graham and 
Dick Durbin. Unlike S. 2061, which relies on damage caps to reduce 
future premiums, the Graham-Durbin bill provides tax credits to 
physicians and hospitals to help offset the increases in malpractice 
insurance. It would also create a medical mistake database, repeal the 
current law that prevents Federal regulators from examining whether the 
insurance industry is engaging in anticompetitive behavior and price 
manipulation to artificially inflate premiums, and impose stricter 
standards to demonstrate that a malpractice case has merit before it 
proceeds.
  I am committed to finding solutions to these problems to ensure that 
Washingtonians continue to have access to quality affordable care 
throughout every city and county in our State. The bill on the floor 
unfortunately is not part of that solution. Hopefully, the debate 
doesn't stop today and these other alternatives will be considered.
  Mr. FRIST. Mr. President, today we will be voting on a cloture motion 
to allow the Senate to proceed to debate S. 2061, the Healthy Mothers 
and Healthy Babies Access to Care Act. I strongly urge my colleagues to 
vote for the cloture motion on the motion to proceed.
  We have had a good discussion over the last few days, and it is clear 
that our medical litigation system is failing the American people. It 
is failing our communities, our hospitals, our doctors, our families 
and, most importantly, our patients. OB/GYNs and the women and babies 
they serve have been uniquely affected. Reform of this broken system is 
desperately needed, and we must act.
  The upcoming vote will allow us to fully debate this critical issue. 
If action is delayed, we know what will happen: patients will suffer, 
women will suffer, and babies will suffer. OB/GYNs will continue to 
flee their practices and drop obstetrical services, and more States 
will be added to the AMA crisis list, a list that already has 19 
States.
  I have received letters from doctors all over America, including from 
my home State of Tennessee, demonstrating the devastating effect of the 
crisis. Premiums in Tennessee have gone up 68 percent over the last 4 
years, and Tennessee is not even considered a crisis State by the AMA--
yet.
  One doctor from Paris, TN, writes:

       As a reproductive health physician I have provided a wide 
     range of obstetrical and gynecologic services to west 
     Tennessee for 13 years. I am one of only two physicians 
     practicing in this area and do a significant amount of high 
     risk procedures. My malpractice insurance premiums have 
     increased from $30,000 to $60,000 in just two years. This is 
     without a claim being filed against me. . . . I am strongly 
     considering terminating my obstetrical practice to leave this 
     area markedly undeserved.

  Another doctor from Athens, TN, writes:

       As an obstetrician in East Tennessee whose liability 
     insurance premiums increased 23 percent in the year 2003, it 
     is becoming progressively difficult and risky for me to 
     continue to deliver babies. Many of my colleagues have either 
     retired or quit doing obstetrics. This is going to severely 
     limit what is already excellent care in this country for the 
     obstetrical patients especially in this part of the State.

  As these real life stories show, this health care crisis is real, 
spreading and uniquely affects OB/GYNs. The current medical liability 
system is costly, inefficient and hurts all Americans. In addition to 
damaging access to medical services, the current medical litigation 
system creates problems throughout the entire health care system:
  It indirectly costs the country billions of dollars every year in 
defensive medicine. The fear of lawsuits forces doctors to practice 
defensive medicine by ordering extra tests and procedures. Though the 
numbers are hard to calculate, well researched reports predict savings 
from reform at tens of billions of dollars per year.
  It directly costs the tax payers billions. The CBO has estimated that 
reasonable broad reform will save the Federal Government $14.9 billion 
over 10 years through savings in Medicare and Medicaid.
  It impedes efforts to improve patient safety. The threat of excessive 
litigation discourages doctors from discussing medical errors in ways 
that could dramatically improve health care and save hundreds or 
thousands of lives. I am a strong supporter of patient safety 
legislation which I hope we will pass this year. But in addition to 
patient safety legislation, we need to address the underlying problem--
our liability system.
  We must reform this broken liability system. That is why I strongly 
support the Health Mothers and Healthy Babies Access to Care Act. I 
thank my colleague, Senator Gregg, who skillfully led this debate, and 
I thank Senator Ensign, a leading proponent of reform, who has seen the 
current crisis close up in his own State of Nevada.
  This legislation will protect women's access to care and ensure that 
those who are negligently injured are fairly compensated. Again, I 
encourage my colleagues to move this legislation forward. We cannot 
afford further delay.
  Mr. President, I ask unanimous consent that a list of groups that 
support S. 2061 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the record, as follows:

Groups That Support S. 2061--Healthy Mothers and Healthy Babies Access 
                              to Care Act

     American Medical Association
     American College of Obstetricians and Gynecologists
     American College of Emergency Physicians
     American College of Cardiology
     American Association of Neurological Surgeons
     American Academy of Dermatology Association
     American Association of Orthopaedic Surgeons
     American College of Cardiology
     American College of Surgeons
     American College of Radiology
     American Gastroenterological Association
     American Society of Cataract and Refractive Surgery
     American Urological Association
     Congress of Neurological Surgeons
     National Association of Spine Specialists
     Society of Thoracic Surgeons
     American Academy of Family Physicians
     American Society of Anesthesiologists

  I thank the Chair, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. Without objection, the clerk will call the 
roll.
  The assistant bill clerk (Ms. Stacy Sullivan) proceeded to call the 
roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Bond). Without objection, it is so 
ordered.
  Mr. SPECTER. Mr. President, I support legislation which would address 
the serious problems faced today by doctors, hospitals and other 
medical professionals who provide obstetrical and gynecological 
services and at the same time provide balance to treat fairly people 
who are injured in the course of medical treatment.
  While most of the attention has been directed to OB/GYN malpractice 
verdicts, the issues are much broader, involving medical errors, 
insurance company investments and administrative practices.
  I support caps on noneconomic damages so long as they do not apply to 
situations such as the paperwork mix-

[[Page 2253]]

up leading to the double mastectomy of a woman or the death of a 17-
year-old woman on a North Carolina transplant case where there was a 
faulty blood type match or comparable cases in the OB/GYN services 
area.
  An appropriate standard for cases not covered could be analogous 
provisions in Pennsylvania law which limit actions against governmental 
entities or in the limited tort context which exclude death, serious 
impairment of bodily function, and permanent disfigurement or 
dismemberment.
  Beyond the issue of caps, I believe there could be savings on the 
cost of OB/GYN malpractice insurance by eliminating frivolous cases by 
requiring plaintiffs to file with the court a certification by a doctor 
in the field that it is an appropriate case to bring to court. This 
proposal, which is now part of Pennsylvania State procedure, would be 
expanded federally, thus reducing claims and saving costs. While most 
malpractice cases are won by defendants, the high cost of litigation 
drives up OB/GYN malpractice premiums. The proposed certification would 
reduce plaintiff's joinder of peripheral defendants and cut defense 
costs.
  Further savings could be accomplished through patient safety 
initiatives identified in the report of the Institute of Medicine.
  On November 29, 1999, the Institute of Medicine, IOM, issued a report 
entitled: To Err is Human: Building a Safer Health System. The IOM 
report estimated that anywhere between 44,000 and 98,000 hospitalized 
Americans die each year due to avoidable medical mistakes. However, 
only a fraction of these deaths and injuries are due to negligence; 
most errors are caused by system failures. The IOM issued a 
comprehensive set of recommendations, including the establishment of a 
nationwide mandatory reporting system; incorporation of patient safety 
standards in regulatory and accreditation programs; and the development 
of a non-punitive culture of safety in health care organizations. The 
report called for a 50 percent reduction in medical errors over 5 
years.
  The Appropriations Subcommittee on Labor, Health and Human Services 
and Education, which I chair, held three hearings to discuss the IOM's 
findings and explore ways to implement the recommendations outlined in 
the IOM report. The fiscal year 2001 Labor-HHS appropriations bill 
contained $50 million for a patient safety initiative and directed the 
Agency for Healthcare Research and Quality, AHRQ, to develop guidelines 
on the collection of uniform error data; establish a competitive 
demonstration program to test best practices; and research ways to 
improve provider training. In fiscal year 2002 and fiscal year 2003, 
$55 million was included to continue these initiatives; $79.5 million 
is being provided in fiscal year 2004. We are awaiting a report, which 
has been delayed after being scheduled for issuance in September, 2003, 
by the Department of Health and Human Services, which will detail the 
results of the patient safety initiative.
  There is evidence that increases in OB/GYN insurance premiums have 
been caused, at least in part, by insurance company losses, the 
declining stock market of the past several years, and the general rate-
setting practices of the industry. As a matter of insurance company 
calculations, premiums are collected and invested to build up an 
insurance reserve where there is considerable lag time between the 
payment of the premium and litigation which results in a verdict or 
settlement. When the stock market has gone down, for example, that has 
resulted in insufficient funding to pay claims and the attendant 
increase in OB/GYN insurance premiums. A similar result occurred in 
Texas on homeowners insurance where cost and availability of insurance 
became an issue because companies lost money in the market and could 
not cover the insured losses on hurricanes.
  In structuring legislation to put caps on jury verdicts in OB/GYN 
cases, due regard should be given to the history and development of 
trial by jury under the common law where reliance is placed on average 
men and women who comprise a jury to reach a just result reflecting the 
values and views of the community.
  Jury trials in modern tort cases descend from the common law jury in 
trespass, which was drawn from and intended to be representative of the 
average members of the community in which the alleged trespass 
occurred. This coincides with the incorporation of negligence standards 
of liability into trespass actions.
  This ``representative'' jury right in civil actions was protected by 
consensus among the state drafters of the U.S. Constitution's Bill of 
Rights. The explicit trial by jury safeguards in the seventh amendment 
to the Constitution were adaptations of these common law concepts 
harmonized with the sixth amendment's clause that local juries be used 
in criminal trials. Thus, from its inception at common law through its 
inclusion in the Bill of Rights and today, the jury in tort/negligence 
cases is meant to be representative of the judgment of average members 
of the community, not of elected representatives.
  The right to have a jury decide one's damages has been greatly 
circumscribed in recent decisions of the United States Supreme Court. 
An example is the analysis that the court has recently applied to limit 
punitive damage awards.
  In recent cases, the Court has shifted its Seventh Amendment focus 
away from two centuries of precedent in deciding that federal appellate 
review of punitive damage awards will be decided on a de novo basis and 
that a jury's determination of punitive damages is not a finding of 
fact for purposes of the re-examination clause of the Seventh 
Amendment--``no fact tried by a jury shall be otherwise re-examined in 
any Court of the United States, than according to the rules of the 
common law''. Then, in 2003, the Court reasoned that any ratio of 
punitive damages to compensatory damages greater than 9:1 will likely 
be considered unreasonable and disproportionate, and thus constitute an 
unconstitutional deprivation of property in non-personal injury cases. 
Plaintiffs will inevitably face a vastly increased burden to justify a 
greater ratio, and appellate courts have far greater latitude to 
disallow or reduce such an award.
  These decisions may have already, in effect, placed caps on some jury 
verdicts in malpractice cases which may involve punitive damages.
  Consideration of the many complex issues on the Senate floor on the 
pending legislation will obviously be very difficult in the absence of 
a markup in committee or the submission of a committee report and a 
committee bill.
  The pending bill is the starting point for analysis, discussion, 
debate and amendment. I am prepared to proceed with the caveat that 
there is much work to be done before the Senate would be ready, in my 
opinion, for consideration of final passage.
  Mr. President, I yield the floor.
  Mr. ENSIGN. Mr. President, we had a debate today--sort of a debate, 
because we are only debating whether to proceed to a debate on the 
issue of whether we are going to continue to allow obstetricians and 
gynecologists and nurse-midwives to be able to practice in this country 
because of the runaway cost of medical liability insurance. The 
Democrats are not even allowing us to proceed to the bill, just like 
last year, when we tried to pass a more comprehensive reform. If they 
don't like the bill, let's amend the bill. But to have no debate on the 
bill, it seems to me, they are completely turning their backs on the 
women and children of this country, and those babies yet to be born.
  I had a discussion this afternoon with the President of the American 
College of Obstetricians and Gynecologists. I was talking to her about 
the numbers of students going into the field of obstetrics and 
gynecology. At the Nevada School of Medicine, the lowest number ever of 
students have applied to go into obstetrics and gynecology. She pointed 
out a statistic in the State right next door, Utah. That number 
actually was zero. Zero have decided to go into obstetrics and 
gynecology. Let me repeat--in Utah, there are no new physicians this 
year who decided to go into

[[Page 2254]]

obstetrics and gynecology. That is an alarming figure for the future.
  For those people who are saying it is a problem but it is not that 
bad--the problem is bad today and it is going to get much worse in the 
future.
  There have been statistics bantered about as to why this happened and 
why that happened. However, the bottom line is shown pretty well in 
this picture. This building is located in a very busy thoroughfare in 
Las Vegas. This is a picture taken last week . The sign says, ``OB/
GYN--For Lease.'' The represents what is going on in many places in 
Nevada and other parts of the country--OB/GYN practices are shutting 
down.
  There are obstetricians and gynecologists leaving my State. It is the 
fastest growing State in the country by far, yet we have OB/GYNs 
leaving. They are stopping their practices. Some of them are retiring 
early. Some of them are limiting their practices to only the practice 
of gynecology. For others to get coverage from the insurance companies, 
they have to limit the number of babies that they deliver each month.
  My wife and I have had three wonderful children. Three of the most 
remarkable experiences of my life were the births of our three 
children. I know a husband and wife team, Joe and Kirsten Rojas, both 
of them OB/GYNs. They are passionate about what they do. They love to 
deliver babies. We have been out to dinner with them and often they get 
interrupted, and they have to go off and deliver a baby. Some of the 
hardest working people are OB/GYNs. Yet now they cannot afford to keep 
practicing. They have to limit the number of deliveries.
  The Rojases are our friends. We talk with them, and they have 
actually talked about leaving Nevada to go to California to practice 
their passion of delivering babies. They love Las Vegas. As a matter of 
fact, Dr. Joe Rojas, his father, was my mom's gynecologist. Actually, 
he did surgery on my wife when she had a medical condition. I graduated 
high school with Dr. Joe Rojas. He was born and raised in southern 
Nevada, and his wife now is in practice in Nevada, and they may have to 
leave their beloved home because they cannot afford the high costs of 
medical liability insurance.
  I want to put up another chart that shows the comparison of the rates 
in States around the country compared with California. Some people are 
saying the insurance rates are rising or falling because of the stock 
market, or insurance companies are just raising the rates arbitrarily 
or because of some kind of actuarial tables. The bottom line is on this 
chart. This puts it into context.
  The one State where we have had medical liability reform for any 
length of time, and it has been since the mid 1980s after surviving 
multiple court challenges, is the State of California. They enacted 
what is called MICRA. It is a strong medical liability reform law that, 
frankly, you could not get passed in the State of California today 
because the trial lawyers are so powerful. Over the years the trial 
lawyers have made so much money off of lawsuits that they are, I would 
argue, the most powerful political lobby in the United States today.
  But in California they were able to enact a medical liability reform 
bill. Their rates are down here shown by the blue line. You see very 
little increase over the years all the way through 1999. The rest of 
the country is shown by this red dashed line. You can see the rates 
going up. This only goes through about 1999. If we took it out to the 
year 2004, to today, you would see another spike going up right now.
  Actually the biggest increases in medical liability insurance we have 
seen have been in the last few years. This crisis is growing and 
getting worse year by year.
  Let us just compare a few cities in two States that have enacted good 
medical liability reform versus cities in four States that have not.
  Los Angeles in California: They have their MICRA law which is an 
effective medical liability reform law. Denver, CO: Once again, they 
have had a law on the books for about 10 years. They have an excellent 
law there.
  Let us look here at OB/GYNs. There are some other specialties and the 
comparison is very fair, but us stay with OB/GYNs:
  Los Angeles, a little over $54,000 a year; Denver, their premiums are 
about $31,000 a year; New York City, $89,000; Los Angeles, $108,000. By 
the way, this number, because this is 2002 data, is very low. In Las 
Vegas, it is somewhere between $140,000 and $200,000 a year, depending 
on how many babies they are delivering and whether they are dealing 
with difficult pregnancies. Looking on: Chicago, $102,000; and Miami, 
$201,000 per year in medical liability premiums.
  Some people say these are rich doctors. Has anybody talked to an OB/
GYN and asked them how much money they make these days? In Maryland, 
they get paid $1,400 for a delivery--not just a delivery but all the 
precare, the delivery, and the aftercare--$1,400 for all of those 
visits, including the hospital time. In the State of Nevada, Medicaid 
pays $1,200. That is about what managed care pays in the State of 
Nevada as well. These are not rich doctors.
  By the way, we are not just talking about doctors; we are talking 
about nurse-midwives as well. When was the last time you talked to a 
rich nurse-midwife? They are in a crisis as well. A lot of them are 
having to leave their practices. In 2 States, legislators they have 
enacted excellent reforms, in too few states, nothing has been done.
  That is the simplest evidence we can give as to why it is so 
desperately needed to enact the bill we have on the floor today. It 
will protect people involved in the delivery of babies and those 
involved in the practice of gynecology.
  We have heard anecdotal stories about women delivering babies 
literally on the side of the road because they had to drive too far 
because their obstetrician left town. This is happening in my State, in 
Arizona, in Mississippi, in West Virginia--there are 19 States 
currently in crisis. Of the States that are left, all but five are 
showing signs of heading into crisis. The one thing we know, unless 
this problem is fixed, is that all of those States showing signs of 
crisis will head into the crisis as well.
  How bad does the situation have to get before this body and those who 
defend the trial lawyers finally say enough is enough? How bad does it 
have to get? How many women have to be denied the care they need?
  In the State of Nevada, sometimes politics drives this argument. 
Sometimes it drives many pieces of legislation around here. In the 
State of Nevada, our level I trauma center closed a few years ago. Just 
prior to its closing, the Democrat leaders in our State said there was 
no way they would pass medical liability reform--no way--it would never 
see the light of day. Our level I trauma center closed. What happened? 
Because of that closing, 3 weeks later a medical liability reform bill 
was passed in the State of Nevada. That medical liability reform bill 
is not a good one--it does have some good components, but it certainly 
does not go far enough. In the State of Nevada, we are trying to close 
the loopholes that were left open by that bill.
  The politics that can be generated out of debating the bill and going 
forward can be a positive thing for actually getting this bill passed. 
The level I trauma center that closed in my State is the same level I 
trauma center where Roy Horn--the famous entertainer from Siegfried and 
Roy who was attacked by the tiger this last year--was treated. Had that 
level I trauma center not been reopened, Roy Horn would probably not be 
with us today.
  The reason it is so apparent that this legislation would work is 
because we have the numbers here to show that in the States who have 
strong medical liability laws, much of the costs have been constrained. 
Case in point, the reason our level 1 trauma center was allowed to 
reopen was that our Governor stepped in and said: We will cover the 
level I trauma center under the State's liability protection.
  What does the State of Nevada have for liability protection? It has a 
$50,000 cap for total damages, which is much more severe than we have 
in this bill. We have only a $250,000 cap on noneconomic damages. You 
can get as

[[Page 2255]]

much as you want out of economic damages, and you can get as much as a 
jury says. Whatever your medical costs, you can get all of those. But 
on pain and suffering, with some of the most outrageous runaway jury 
awards, we limit it to $250,000.
  Some say you are limiting the access to courts when you do that. In 
the State of California, once again, there have been tens of millions 
of dollars awarded in loss of income. For instance, a child was 
injured, and in one case $84 million was awarded by a jury. We are not 
limiting the access. We are trying to get rid of the frivolous lawsuits 
that are plaguing this Nation and leading to this crisis. There is a 
direct correlation.
  Senator Daschle stood on the floor earlier today and said this bill 
would not help doctors. I question that statement because the doctors 
are supporting this bill. Virtually every medical association in this 
country is supporting this bill today. If it is not providing relief to 
the doctors, why are they supporting this bill? The answer is obvious. 
The answer is, it will help. It will help our entire system, and it 
will help those women and children who are being denied access to care 
right now. Unfortunately, if we don't do something, this situation in 
the future is only going to get worse and worse and worse.
  The bill we have before us today, Senator Gregg and I introduced. I 
appreciate all of the great work he has done on this bill, which is a 
narrowed down version of what we tried to pass last year. What we tried 
to pass last year was a comprehensive bill. If we are not able to move 
to this bill today, we are going to try to do emergency room and trauma 
care and a good samaritan bill packaged together. If we can't get that 
done, we are going to do inner-city and rural health care areas--
underserved areas.
  We are trying to drive this issue home to the American people. They 
realize where their representatives stand.
  Some have said you are trying to get a rollcall vote. You are darned 
right we are. We are trying to let people know who stands with patients 
and who stands with women and children with this bill and who stands 
with the trial lawyers.
  Mr. ENSIGN. Another friend of mine in southern Nevada, whom I was 
talking to about 6 months ago, is one of the best OB/GYNs we have in 
southern Nevada. He focused his practice on difficult pregnancies, on 
the high-risk pregnancies, pregnancies with complicating factors. Maybe 
there is diabetes involved. That is a very common problem. One of my 
goddaughters who babysits our children has gestational diabetes. It is 
not an uncommon problem among women. During that time, there can be 
complications develop because of diabetes. It can be a very serious 
problem, but if handled by highly trained physicians, usually you do 
not end up with any problems.
  Because my friend is in the high-risk category--by the way, he has 
never had a lawsuit against him--his insurance company this past year 
said he had to severely limit the number of babies he could deliver. 
This is his passion, and now he has to limit the number of high-risk 
deliveries. That means some other OB/GYN who is not as highly trained 
is going to have to deliver those babies.
  If you are getting ready to deliver and you have a high-risk 
pregnancy, you would want the best possible medical care you could get. 
You would want the most highly trained physician. If you were told that 
because of our medical liability crisis in this country--I am sorry, 
you cannot go see your doctor--the one you have come to trust, because 
they had to limit the number of babies they could deliver in this 
month, imagine how that whole family would feel--the father, the 
mother, the grandparents. It puts an unnecessary risk on that delivery 
we should not be facing.
  While no one wants to have medical malpractice cases, there are 
mistakes that occur in medicine. I am a veterinarian by profession. 
There are human mistakes. There is gross negligence. Those people 
should have the right to access a courtroom. They should have the 
ability of a remedy. I argue that our legislation actually gets them 
the remedy faster. It limits the attorney's fees so more of the money 
goes to the victim. It also gets the money to the victim faster. Right 
now it can take 6, 7, 8, 9, 10 years. A lot of times the patient may 
have already died. Our bill gets them the compensation they need much 
more quickly and in a fair manner.
  I have heard it described that this bill discriminates against women. 
That would be like saying the whole State of California and the whole 
State of Colorado discriminates against women. That is ridiculous. 
California and Colorado are the two best examples of medical liability 
reform having been enacted and have been enacted for enough time to see 
it work. The patients who are injured actually get the compensation 
they deserve and we do not have the proliferation of frivolous lawsuits 
we see in the rest of the country in the healthcare field. There are 
many areas of tort reform we need to address. This happens to be one of 
them.
  Anyone who has delivered or seen their child's birth knows the 
anxiety that builds up; it is a tense time. Every time one of our 
babies comes out of the birth canal, we are hoping and praying 
everything is going to be all right. The biggest fear of any parent is 
for something to go wrong. We want to know the best possible health 
care and the best possible health care provider is going to be there. 
That is not happening in too many cases. That is not happening because, 
I believe, the trial lawyers have been too powerful in the United 
States. We have to break that power base if we really want to care 
about the mothers who are expecting or about the level of gynecological 
care they have come to expect and deserve in this country.
  This legislation is critical to the future quality of life in the 
United States. It is critical that we put special interests aside and 
the interests of patients at the forefront. That is what we are 
debating today. Are we going to put expectant mothers, midwives, OB/
GYNs first? Or are we going to put the trial bar first?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. With the attention of my friend from Nevada, I ask 
unanimous consent I be allowed to speak as in morning business for 6 or 
7 minutes. I think there are a couple of other speakers on the majority 
side who want to be here. When they come over, I will wrap up my 
remarks to give them time to be heard on the matter.
  Mr. ENSIGN. I agree to the unanimous consent request with the caveat 
that if a Member of the majority comes over and seeks recognition, they 
will be recognized.
  Mr. DODD. I am happy to do that and I thank my friend from Nevada.
  The PRESIDING OFFICER (Mrs. Dole). Without objection, it is so 
ordered.


                        Growing Anarchy in Haiti

  Mr. DODD. Madam President, I come this afternoon to express my deep 
concern over the growing anarchy and lawlessness in Haiti. This ominous 
situation, only miles off our own shores, threatens to overwhelm the 
elected government of Haiti in a number of days, and unless our 
country, the United States, along with other members of the 
international community, acts to stop it, it will get worse and pose 
far many more serious problems for us.
  In my view, 3 years of neglected, mixed signals and inertia by the 
present administration--and the international community, for that 
matter--have brought a country already steeped in misery and poverty to 
the brink of uncontrollable violence and chaos. With respect to our own 
administration, which has sought to remake the political landscape of 
the Middle East, it is profoundly disturbing and unsettling that it 
seems incapable or unwilling to act to fortify a struggling democracy 
in our hemisphere.
  I will not defend every action of the Aristide government in Haiti. 
There have been major problems there. I accept that and understand 
that. But no one denies this government was duly elected by the people 
of Haiti and it is

[[Page 2256]]

being threatened today by a group of thugs and rebels, many of them who 
come from the previous death squads and ousted armed forces members 
which ruled that country with a brutal hand, who make up the majority 
of the people holding the second and fourth largest cities in Haiti 
today.
  I am not standing here as some political defense of a specific 
administration, but I do stand here as someone who believes that if we 
are going to defend democracy, we have to be willing to stand up when 
fragile democracies, such as this desperately poor country, are being 
threatened by a group of people who do not have the interests of 
democracy at heart and have no right to be threatening this 
democratically elected government.
  While I cannot discuss the administration's classified briefing of 
this morning, I can say that I was stunned by the lack of any coherent 
administration strategy for addressing the violence that may unseat the 
elected government. It is no secret that Haiti's long history of 
authoritarian governments as well as political and social upheaval have 
made it ripe to destabilize. The Haitian people continue to be the 
principal victims of this instability. The statistics are devastating.
  Eighty percent of Haitians live in abject poverty; that is, 8 out of 
10 people. By 1998, the World Bank reported that the per capita income 
in Haiti was $250 a year, less than one-tenth of the average in all of 
Latin America. In addition, only half of Haitian children attend 
school. Only 45 percent of the Haitian population can read or write and 
only marginally so. That is less than the people of Iraq.
  The scarcity of resources have contributed to a public health crisis 
in that nation. Fifteen percent of children don't live past the age of 
5. The average life expectancy is under 50 years of age. Haitians 
suffer from the highest rate of HIV/AIDS in the Western Hemisphere, 
roughly 6 percent of the population.
  I note the presence of the Presiding Officer who, in a former life 
and occupation, knew these numbers and statistics as well as anybody. I 
appreciate her listening to this because she understands better than 
many what goes on in these impoverished nations.
  Equally important are the intangible effects of this instability in 
this little country. Chief among them is the growing chaos in civil 
society. Indeed, the very fabric of Haitian society is at risk as pro 
and antigovernment factions armed with every imaginable weapon are 
increasingly clashing in the streets. Just in the last 2 weeks, more 
than 50 people have been killed in politically charged street protests. 
This violence took a new and disturbing turn when a group of armed 
gangs seized the towns of Cap Haitien and Gonaives, Haiti's second and 
fourth largest cities. They burned police stations and homes of 
supporters of Haitian President Jean Bertrand Aristide.
  The year 2004 was to be a year of rejoicing and celebration for the 
people of Haiti as they were expected to proudly celebrate 200 years of 
independence. Instead they are forced to flee from their communities to 
escape seemingly indiscriminate violence. There is no mystery, in my 
view, who is behind these armed attacks. They have audaciously 
identified themselves to local and international journalists. They are 
former members of the Haitian armed forces and former members of the 
so-called FRAPH, the paramilitary organizations that terrorized 
Haitians in the early 1990s. They were responsible for the deaths of 
thousands of Haitians and the flight of tens of thousands more who were 
prepared to risk their lives at sea coming to this country rather than 
bear the repression and violence that was a daily occurrence in that 
country. They are back in Haiti, and they are within an eyelash of 
taking control of Haiti again. We are going to see the effects of it 
here in a matter of days.
  These armed thugs have publicly announced that they intend to march 
on Port-au-Prince within hours. In fact, within 15 minutes of my 
address today, a decision will be made by the so-called political 
opposition in Haiti on whether to accept the recommended political 
solution that would bring about a new Prime Minister, sort of a 
copresidency with the present elected government. That is the offer to 
be made. It has been rejected in the last several days by these gangs 
and the opposition.
  At 5 o'clock they are going to announce whether they are willing to 
try it again. I hope they will try. I hope they will accept what has 
been offered to them by CARICOM, our Government, and others. If they 
don't, I am fearful that we will see a continued rise in this violence, 
the cost of human life, of innocent life unnecessarily.
  The administration up to now has offered only words. I commend Colin 
Powell. He has said that we respect this elected government and we 
don't believe it ought to be overthrown, that we will not support any 
removal of this democratically elected government. But those are words. 
They are important words coming from an important individual, but it 
doesn't diffuse the growing crisis. A rejection of the political 
solution does not portend well for the people of this country. A 
violent coup that unseats the duly elected government is not an 
auspicious foundation for further stability in that country as the 
painful aftermath of the 1991 coups should remind us.
  It is too late for diplomacy alone to turn the tide. The political 
opposition's rebuff of last weekend's diplomatic mission makes that 
painfully clear. The international community must act with strength and 
resolve to thwart these criminal elements and prevent the impending 
humanitarian refugee crisis that is about to explode before our very 
eyes. It is time for the administration to take the lead in this 
matter.
  I am not suggesting that we send some massive force. We are talking 
about 200, 300, 400 gang members, thugs. It is not a large operation. 
It wouldn't take much of an international force to send a message that 
we are not going to allow this government, this crowd to overthrow the 
elected government.
  Our position as of right now is that we won't do anything. We are not 
going to step up until there is some political context in which to 
operate.
  There will be a political context when we let these thugs know that 
we are not going to tolerate the overthrow of this government by asking 
others to join us. I hope the administration would be prepared to act, 
particularly in light of what I anticipate to be the rejection of the 
offer of a political solution.
  While I commend CARICOM, the Caribbean community's organization, for 
ongoing efforts to find a temporary solution to the political crisis, 
these efforts have so far been fruitless because the political 
opposition hopes they will be able to watch an overthrow of this 
elected government and then count on the U.S. Government to come in and 
sanction them, as if somehow they have arrived in power legitimately.
  Let me say to them today: If you think for a single second you are 
going to get any support out of this Congress by overthrowing an 
elected government, you are fooling yourselves. It is not going to 
happen.
  This government of ours needs to speak loudly and clearly to these 
people that this is not what the United States stands for. This is not 
an endorsement of every action by the Aristide government any more than 
we endorse every action of other governments around this hemisphere or 
elsewhere. But to sit back and sort of wink, in a sense, that it is OK 
for these gangs and thugs and literally drug dealers, some of the worst 
elements that that country has ever seen, come back into power and be 
able to overthrow this government is a huge mistake.
  It is occurring on this administration's watch. To allow it to happen 
will be tragic. Let there be no doubt the United States will suffer, 
along with the Haitian people, if we permit this to go on. Haiti is 
located only miles from our doorstep. Lawlessness in Haiti only ripens 
conditions for narcotrafficking and illegal migration.
  Haiti is already a major transition site for drugs coming into this 
country. We know that already. If we think we are going to get a better 
deal from

[[Page 2257]]

these gangs that are about to overthrow this country, we are making a 
mistake. Engagement with the Haitian people is clearly in the best 
interests of both our peoples.
  Not only is the lack of real leadership on the part of our own 
country disgraceful and disappointing, it is dangerous. Without that 
leadership, there will be worse violence and greater chaos.
  Once security has been restored, the administration has at its 
disposal the tools to move both sides toward a political compromise, 
should it choose to utilize them. With respect to the Government of 
Haiti, that includes providing direct assistance to the Haitian police, 
assistance in the form of training and equipment in return for 
compliance with the CARICOM initiative.
  With respect to political parties and civil society, the United 
States should revoke U.S. visas to any of these organization members 
who are unwilling to participate wholeheartedly with the diplomatic 
efforts to find compromise or who support or condone violence. If it 
takes legislation banning these people from getting visas, I will do 
it. These people travel to the United States all the time and then turn 
around and provide support to these thugs and then anticipate coming 
here when it gets a little dangerous. They have no right to come to 
America, if they participate in this action going on in Haiti as we 
speak.
  The Dominican Republic and other Caribbean countries must take action 
to stop these territories from being used as a transit point for 
illegal arms shipments to Haiti or as staging areas for armed Haitian 
opposition groups. Equally important, the United States and the 
international community must stop ignoring the negative impact that our 
economic policy of withholding assistance to the Haitian people is 
having on Haiti's stability.
  Corruption aside, the Haitian government's lack of resources would 
preclude anybody from effectively ruling that country. It is 
disingenuous of the Bush administration and the international community 
to cut off hundreds of millions of dollars in aid to these desperately 
poor people, some of the poorest people in the world. They needed just 
a small amount of help, and we were unwilling to give them any over the 
last 3 or 4 years. It is no wonder that chaos is running wild in that 
country today.
  I hope the administration will take far more concrete steps to 
respond to this crisis than they have presently. My hope is that within 
a matter of minutes the political opposition and others will agree to 
the political solution offered to them. If not, the United States and 
the international community need to step up and offer to send in armed 
forces, if necessary, to protect the overthrow of this legitimately 
elected government.
  Mr. ENSIGN. Madam President, what is the situation regarding time?
  The PRESIDING OFFICER. The time has expired.
  Mr. ENSIGN. Of the 10 minutes remaining, 5 minutes is for the 
minority and 5 is for the majority leader, is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. ENSIGN. The majority leader has the last 5 minutes.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. ENSIGN. Madam President, 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. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, the distinguished Senator from Nevada, my 
colleague, Senator Ensign, has been waiting for the minority leader to 
come. The time is here for the majority to use. If the minority leader 
decides to use 5 minutes, I ask unanimous consent that the majority be 
given the final 5 minutes to speak on this matter.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The junior Senator from Nevada is recognized.
  Mr. ENSIGN. Madam President, I want to sum up this debate telling one 
story and making a few other points. Some on the other side of the 
aisle claim ``they want to make health care a birthright for every 
single child born in this country.'' Yet they are driving the very 
doctors who bring America's babies into the world out of their medical 
practices.
  Let me remind you of Melinda Sellard's story. She is the unfortunate 
woman who went through a horrifying experience of delivering a baby on 
the side of the road in the middle of the night because her doctor had 
quit obstetrics altogether due to exorbitant insurance premiums. En 
route, she and her husband had to drive right past the Copper Queen 
Community Hospital, which closed its maternity ward 2 months earlier 
because of the medical liability crisis. Instead, the Sellards were 
forced out onto the highway to try to get to the only hospital within 
6,000 square miles with obstetricians who could afford malpractice 
insurance.
  After enduring the excruciating pains of labor without anesthesia, 
Melinda was forced to give her newborn infant CPR, since the baby was 
not breathing immediately after delivery. She finally got her newborn 
breathing, wrapped him in a sweater she was wearing, and drove the rest 
of the way to the hospital where the emergency staff cut the umbilical 
cord in the parking lot.
  I urge my colleagues to think of Melinda and the other mothers in 
this country who have lost their doctors and to stand up to the trial 
lawyers and support cloture on this bill. The ``objects in your rear 
view mirror that are closer than you think'' should never be a woman 
and her newborn child on the side of the road.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic leader is recognized.
  Mr. DASCHLE. Madam President, I know that time is close to having the 
vote. I will use my leader time. I want to make a couple of additional 
remarks about the bill.
  We have had a great deal of discussion today and comments made by 
some of our Republican colleagues about the hardships malpractice 
insurance premiums place on doctors. There is no difference of opinion 
in that regard. Both Republicans and Democrats agree this is a real 
challenge and it certainly demands our attention. But I think we have 
to reject cloture this afternoon for the simple reason this bill does 
nothing to solve it. As we have heard most of the day, every piece of 
available evidence shows capping damages has no impact on the cost of 
malpractice insurance.
  Reports from the General Accounting Office, the Congressional Budget 
Office, Weiss Ratings, and the Medical Liability Monitor all confirm 
malpractice awards are not the primary factor driving the cost of 
malpractice insurance higher. Even the insurance industry admits caps 
won't protect doctors from higher insurance premiums. Just last year, 
Bob White, president of the largest medical malpractice insurer in 
Florida, stated, ``No responsible insurer can cut its rates after a 
[medical malpractice tort reform] bill passes.''
  Doctors deserve our help. They need our help. They certainly want it. 
But no doctor should expect lower insurance rates as a result of this 
bill. It is wrong to take away the women's right in the courtroom 
merely to protect the profits of the insurance companies.
  This bill would create, for the first time, an unjust two-tiered 
legal system, actually restricting the rights of women and infants who 
are hurt by the negligence of a doctor, HMO, drug company, or even a 
medical device manufacturer.
  If a man is prescribed defective blood pressure medication by an 
internist, he can recover full damages under the bill. If a woman is 
prescribed blood pressure medication during pregnancy that causes blood 
clots, her damages will be arbitrarily capped. There may even be a 
constitutional question involved in this disparity between men and 
women.
  The idea that men and women should have unequal access to the legal 
system offends, if not the Constitution,

[[Page 2258]]

certainly our sense of justice. But the real problem with this bill 
isn't merely that it values the injuries of men and women differently, 
as troubling as that is. The real problem is that it presumes that 
somehow those of us in this Chamber are better able to determine how to 
compensate injured patients in a preemptive way, knowing ahead of time 
all of the circumstances. Knowing exactly how these people are going to 
be affected by the decisions we make today is something I don't think 
anyone could acknowledge they have the ability to do.
  This morning, I spoke with Colin Gourely of Valley, NE. At his birth, 
he suffered complications due to his doctor's negligence. Today he has 
cerebral palsy and is confined to a wheelchair. He has had five 
surgeries to correct his bone problems that have occurred as a result 
of this serious misjudgment in medical care.
  Politicians in Washington can't decide what is just compensation for 
Colin's pain or the pain of any injured patient. We shouldn't apply the 
one-size-fits-all remedy for the tens of thousands of women and infants 
who are injured each year.
  The fact is, no amount of money can ever compensate a parent for 
their child's pain, but malpractice awards are not simply about money. 
They are about offering victims a sense of justice, a way of holding 
accountable those responsible for their injuries or the death of their 
loved ones.
  Malpractice awards are decided by juries and approved by judges. This 
is the same system we rely on to decide life or death issues in capital 
cases. Why wouldn't we trust our citizens to fairly evaluate how to 
deliver justice for the victims of medical malpractice?
  There are real solutions that can bring down the cost of malpractice 
insurance, and Democrats are eager to work with our Republican 
colleagues to implement them. We have talked about tax credits to 
offset the high cost of premiums, prohibitions against commercial 
insurers engaging in activities that violate Federal antitrust laws, 
sensible ways to reduce medical errors, direct assistance to geographic 
areas that have a shortage of health care providers, due especially to 
malpractice insurance premiums.
  So if our colleagues are as concerned about the plight of doctors as 
they have indicated again today, I hope they will work with us to 
devise a real solution. Let's drop the maneuvers that protect only the 
profits of insurers and HMOs and pharmaceutical companies, and let's 
have a serious discussion about how we solve the problem for our 
Nation. I think we have an obligation to have that conversation and 
ultimately come to some solution. Doctors and patients deserve it. They 
deserve an answer. This bill is not it.
  As a result, once again I urge my colleagues to reject cloture. I 
yield the floor.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the Chair lays before the Senate the pending cloture motion, 
which the clerk will report.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to Calendar No. 429, S. 2061, a bill to improve 
     women's access to health care services and provides improved 
     medical care by reducing the excessive burden the liability 
     system places on the delivery of obstetrical and 
     gynecological services:
         Bill Frist, Judd Gregg, Kay Bailey Hutchison, Lisa 
           Murkowski, Susan Collins, Elizabeth Dole, Michael B. 
           Enzi, James M. Inhofe, John Ensign, Craig Thomas, John 
           Cornyn, Pat Roberts, Sam Brownback, Orrin G. Hatch, 
           Charles Grassley, Mitch McConnell, Jon Kyl.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 2061, a bill to improve women's access to 
health care services and provides improved medical care by reducing the 
excessive burden the liability system places on the delivery of 
obstetrical and gynecological services shall be brought to a close? The 
yeas and nays are mandatory under the rule. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Utah (Mr. Bennett) is 
necessarily absent.
  Mr. REID. I announce that the Senator from California (Mrs. Boxer), 
the Senator from New Jersey (Mr. Corzine), the Senator from North 
Carolina (Mr. Edwards), the Senator from South Dakota (Mr. Johnson), 
the Senator from Massachusetts (Mr. Kerry), and the Senator from 
Georgia (Mr. Miller) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
South Dakota (Mr. Johnson) and the Senator from Massachusetts (Mr. 
Kerry) would each vote ``nay''.
  The yeas and nays resulted--yeas 48, nays 45, as follows:

                      [Rollcall Vote No. 15 Leg.]

                                YEAS--48

     Alexander
     Allard
     Allen
     Bond
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--45

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Breaux
     Cantwell
     Carper
     Clinton
     Conrad
     Crapo
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Graham (FL)
     Graham (SC)
     Harkin
     Hollings
     Inouye
     Jeffords
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Shelby
     Stabenow
     Wyden

                             NOT VOTING--7

     Bennett
     Boxer
     Corzine
     Edwards
     Johnson
     Kerry
     Miller
  The PRESIDING OFFICER (Mr. Alexander). On this vote, the yeas are 48, 
the nays are 45. Three-fifths of the Senators duly chosen and sworn not 
having voted in the affirmative, the motion is rejected.

                          ____________________