[Congressional Record (Bound Edition), Volume 150 (2004), Part 3]
[Senate]
[Pages 3036-3037]
[From the U.S. Government Publishing Office, www.gpo.gov]




     HEALTHY MOTHERS AND HEALTHY BABIES ACCESS TO CARE ACT OF 2003


                          medical malpractice

  Mr. KYL. Mr. President, last year, the Senate considered legislation 
to try to mitigate healthcare cost increases by reforming the medical 
malpractice system. The bill we took up was S. 11, ``The Patients First 
Act of 2003,'' which I had co-sponsored. Unfortunately, gridlock 
prevailed when a cloture motion was defeated. While I was disappointed 
that the Senate could not address healthcare liability reform on a 
comprehensive basis, we now have the opportunity to address the 
obstetrics and gynecological specialty with S. 2061, ``The Healthy 
Mothers and Healthy Babies Access to Care Act.''
  There is a reason that the OB/GYN specialty should be one of the 
first areas addressed by medical malpractice. It is one of three 
specialties subject to the highest liability insurance premiums. 
Nationally, the dramatic increases in premiums--more than 160 percent 
over 16 years, 1982 to 1998--have greatly outpaced the rate of

[[Page 3037]]

inflation, and many physicians and hospitals have been unable to keep 
up with these escalating costs. In Arizona, OB/GYN practices face 
premiums averaging $67,000--up 16 percent in just one year's time.
  There are only a few ways doctors and hospitals can bear these costs. 
They can pass a portion of them on to patients or they can alter their 
practice patterns. Some physicians have cut the salaries of their hard-
working, professionally trained medical staff or reduced headcount in 
their practices. Those who are still employed after the cutbacks are 
overworked, stretched thin with added responsibilities. Other doctors 
have reduced or completely eliminated some gynecological, surgical or 
high-risk obstetric procedures. Perhaps most disturbing are the 
instances of physicians retiring early, relocating their practices to 
states with friendly laws, or dropping obstetrics altogether.
  The result is that women's access to prenatal and delivery care is 
compromised. There are fewer physicians in practice to tend to women; 
patients have less time with their doctor. I am concerned that women 
seeking prenatal care and delivering their babies in Arizona may have 
to travel long distances, passing by hospitals along the way, just to 
find a facility that can accommodate their needs. While Arizona is not 
deemed a medical liability ``crisis state'' by the American Medical 
Association--I am working to make sure that does not become the case--
instances of facilities having to close are too frequent. For instance, 
Copper Queen Community Hospital in Bisbee, AZ, closed its maternity 
ward after physicians there, who were able to deliver babies, lost 
their liability insurance coverage. Imagine a community hospital that 
cannot meet one of the primary needs of its residents because of 
escalating medical liability costs.
  The problem lies with a tremendous backlog in our courts and 
excessive jury awards that average $3.9 million. With more than 50 
percent of jury awards totaling over $1 million, and the number of 
cases presented steadily on the rise, medical malpractice insurance 
carriers incur a great expense for defending suits, even those that are 
dismissed with no indemnity payment. Physicians Insurers Association of 
America claims that it costs physicians more than $75,000 to defend 
themselves in cases that they win--of course, even more in cases where 
they are found liable. Most notable may be the number of cases that are 
settled out of court without an admission or determination of guilt, 
just to avert the possibility of a ``mega award'' that could bankrupt a 
practice.
  Looking ahead, I am troubled by the number of medical students and 
residents who are feeling medical liability's sting. Almost 50 percent 
of America's medical students say they factor the medical liability 
crisis in their choice of specialty. Can we afford to have some of the 
best and brightest physicians of tomorrow dissuaded from specialties 
because we did not do what was right and fix the system today?
  The Healthy Mothers and Healthy Babies Access to Care Act only 
addresses obstetrical and gynecological care. It would establish 
parameters to maximize returns to the patients instead of trial 
lawyers. It would hold physicians and insurers accountable for medical 
expenses in instances where they are clearly wrong. The legislation 
would establish a period of 3 years from the date of injury for a 
person to bring forth a claim, making exceptions to this statute of 
limitations in cases involving minors. S. 2061 would allow for 
unlimited awards of economic damages, while placing reasonable caps on 
non-economic damages--pain and suffering. This is an important 
distinction that I want to take a moment to address.
  Economic damages are for the payment of medical expenses--both past 
and future--the loss of earnings--both past and future--as well as the 
cost of having services in the home to assist someone who has been 
injured or incapacitated from a negligent act. There is no limit on 
these awards. It is important to me to preserve a patient's access to 
full medical care when a party has been found negligent. This 
legislation does that.
  Non-economic damages meant to compensate for physical and emotional 
pain and suffering are not easily quantified. For these damages, awards 
would be capped at $250,000 and would be in addition to economic 
damages awarded. Very often, juries have awarded individuals millions 
of dollars to punish a defendant, not necessarily to compensate for 
what is an intangible loss.
  Under S. 2061, contingency fees would be set to make sure that 
patients with valid claims do not see their awards siphoned away by 
lawyers. The bill would allow lawyers to recoup fees and make a profit, 
but not at the unfair expense of the plaintiff.
  We have been down this road before and I am hopeful that my 
colleagues on both sides of the aisle will join me in support of 
medical malpractice reform. This legislation will deliver on the 
promise made to our constituents to fix the healthcare system in this 
country and rein in excessive and frivolous lawsuits.

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