[Congressional Record (Bound Edition), Volume 150 (2004), Part 5]
[Senate]
[Pages 6729-6743]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           ORDER OF PROCEDURE

  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the 10 
minutes already allocated to me be increased to 20 minutes and include 
the time previously allocated to Senator Dayton of Minnesota.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I thank the Senator from Minnesota for 
yielding me the 10 minutes so I might speak to this important issue 
this morning. I thank the Senator from Nevada for illustrating to us a 
serious challenge that faces America. There is no doubt in my mind, nor 
in the minds of those who studied this issue nationwide, that we need 
to do something as a nation to deal with medical malpractice liability.
  It is clear that in many parts of our country, in many parts of my 
State, the cost of medical malpractice insurance has gone up 
dramatically, to the point that some doctors are moving to other States 
and some are retiring. That is a reality. It is a reality in Illinois. 
It is a reality in other States. I believe we need to do what is 
necessary on a bipartisan basis to grapple with this issue.
  Although it will be the first time in history the Federal Government 
would take on the question of civil procedure and medical malpractice 
cases in States, frankly, it may be the only way to approach it. So I 
agree with my colleagues on the other side of the aisle that inaction 
on our part will only make this problem worse. We need to move forward. 
But I come today to tell you the bill before us, S. 2207, is not the 
right approach.
  I encourage my colleagues on both sides of the aisle to look at this 
bill carefully. I hope they will view, as I do, this bill as an honest 
attempt to identify a problem but a very inadequate attempt to solve 
it.
  Let me say at the outset that a lot has been said about emergency 
rooms, which are covered by this bill. Some has been said about OB/GYNs 
delivering babies, and that is covered by this bill. But the sponsors 
of this bill have not mentioned the fact that it also exempts from full 
liability drug companies, medical product manufacturers, insurance 
companies, those who make vaccines that cause problems for children. 
They are also included in this bill.
  So much has been argued about the doctors in the emergency rooms, but 
the full scope of the bill has not been described, at least as long as 
I have been on the floor.
  Let me tell you what I think is wrong with this bill. Here is what 
the bill says: The bill says in cities and communities across America 
where we rely on a jury of your neighbors and friends to come together 
and decide what is fair and what is just, when it comes to those 
lawsuits involving injuries, coming out of, for example, an emergency 
room treatment, no longer will a local jury decide. The case will be 
decided on the floor of the Senate. One hundred Senators will decide 
today with this bill that regardless of what happens to you or your 
child when you go to an emergency room for treatment, regardless of the 
possibility that you brought your child in as an innocent victim 
seeking medical care at an emergency room, and that child, the love of 
your life, became the victim of medical malpractice, regardless of the 
circumstances, we will decide on the floor of the Senate, if that child 
is facing a lifetime of disability, a lifetime of disfigurement, a 
lifetime of pain and suffering, we, the jury of the Senate, will decide 
it will never be worth more than $250,000 for the pain and suffering, 
for the disfigurement, for the incapacity they will face. That is what 
the bill says.
  When you look at it you think, why? Why would we decide that 
regardless of the lawsuit, someone could never receive more than 
$250,000 for pain and suffering, for noneconomic losses? The argument 
is, unless we put a cap on the possible recovery in a lawsuit, 
malpractice premiums will continue to rise and doctors will not be able 
to afford them. That is the premise. That is the argument of this bill.
  So the first thing I would like to do is question that premise. Let's 
look at the facts.
  Here we have OB/GYN insurance premiums in States with caps, with 
limitations on the amount a jury can award, and without caps. In 
California, with caps of $250,000, called for in this

[[Page 6730]]

bill, we see a 54-percent increase in the year 2003 in medical 
malpractice premiums; Oregon, with no caps, 0 percent increase; 
California, a 15-percent increase versus the State of Washington, 0 
percent; Colorado, a 29-percent increase where they have caps and 
limitations on jury verdicts, and in Georgia with no caps, a 10-percent 
increase; New Mexico, with caps on how much the jury can award, a 52-
percent increase in malpractice premiums; Arizona, right next door with 
no caps, no limitations, only a 14-percent increase.
  So the argument that caps will bring down premiums is illustrated 
here to just be wrong. The premise is wrong. The argument is wrong.
  Take a look at the premiums and what has happened in States without 
caps between 1991 and 2002 and those with limitations on jury verdicts.
  Arizona in this period of time of 10 or 11 years, 3-percent increase; 
New York, 6 percent; Georgia, 8 percent; Washington, 27 percent. These 
are States without caps. Then take a look at the States with caps, with 
limitations on jury awards, 50-percent increase in California; 60 
percent in Kansas; 82 percent in Utah; 84 percent in Louisiana. The 
argument is made--and I heard it on the floor this morning--that it is 
because so much is being paid out in terms of verdicts, and that is why 
premiums have gone up.
  There is little or no correlation between the amounts that are paid 
out in verdicts and settlements and what happens to premiums. One would 
think there would be a direct correlation, but look at this situation. 
The State of Hawaii, a 527-percent increase in 10 years in the amount 
paid out in medical malpractice suits, a 10-percent increase in 
premiums; Iowa, a 87-percent increase in payouts, a 12-percent decline 
in the premiums charged. The case is illustrated and goes on.
  The point I wish to make is if the premise of this law is 
establishing caps will bring down malpractice premiums these two things 
we can be sure of: There is no evidence to support it in many of the 
States with the strictest caps and, secondly, if there is any benefit 
to be realized by establishing caps it will be years before it is 
realized. That just reflects the fact that lawsuits filed for 
malpractice are filed years after the event occurred. Frankly, if there 
is any benefit to be realized, doctors and hospitals today will not see 
it for a long time.
  The second thing that I think cries out to be said when it comes to 
capping what a jury can award in a case involving medical malpractice 
is the fundamental injustice involved in this. Here we have to go 
beyond the theoretical, beyond the statistical, to the real world of 
what happens when people show up at emergency rooms for treatment.
  This is a beautiful young girl, Shay Maurin, from Hartford, WI. She 
was the victim of medical malpractice. On March 5, 1997, her mother 
took her 5-year-old daughter Shay to a local clinic because she thought 
something was wrong. She was not sure what it was. The physician's 
assistants at the clinic thought Shay might have diabetes but did not 
perform any tests.
  The mother then took her daughter to the emergency room, where she 
told the emergency room doctor that the clinic thought this little girl 
might have diabetes and maybe that was why she was sick. She was 5 
years old.
  Although her daughter was exhibiting signs and symptoms of diabetes, 
the emergency room did not administer the standard finger-stick test, 
the basic test that people suffering from diabetes go through regularly 
to monitor their blood insulin. Instead, this little girl and her 
mother were sent home from the emergency room.
  This little girl died of diabetic ketoacidosis the following 
afternoon. That occurs when a person who has diabetes is not treated 
with insulin. The body's blood sugar builds up to extremely high 
levels. The body cannot metabolize what the person eats. The body 
becomes severely dehydrated. Acid buildup occurs, leading to swelling 
of the brain and death.
  The emergency room which failed to administer the most basic test, 
after being told by the mother that they suspected she was suffering 
from diabetes, was found 88-percent responsible for her death and the 
clinic 12-percent responsible. If we pass this bill, we have decided 
that the jury of the Senate would say to this little girl's family: The 
maximum you can recover for the losses and pain and suffering for this 
little girl is $250,000.
  Let me tell my colleagues a story of another young girl. This 
beautiful little girl is Lauren Meza. On January 2, 2000, Jennifer Meza 
took her 2\1/2\-year-old daughter Lauren to the emergency room at the 
recommendation of her pediatrician.
  The baby's symptoms indicated that she may have had pneumonia. The 
child's father was being hospitalized for pneumonia at the time she 
developed the symptoms. The emergency room doctor refused to perform 
any tests, insisting to Ms. Meza that her daughter would be fine and 
she should go back home.
  Two days later, Ms. Meza brought Lauren back to the pediatrician, who 
was alarmed at her deteriorating condition. The doctor determined she 
needed immediate emergency care and she was airlifted to another 
hospital where she was treated for a condition that left her body 
unable to expel toxic agents and waste products, forcing them into her 
bloodstream. As a result of the emergency room doctor's denial of care, 
she is facing dialysis and a kidney transplant before she turns 10 
years of age.
  What this bill says is that this little girl, Lauren Maza, facing a 
lifetime of dialysis and ultimately a kidney transplant, would never be 
allowed more than $250,000 for any pain and suffering which she 
sustained because of the clear negligence of the emergency room doctor.
  Let me tell my colleagues about a case that involves a person who is 
somewhat older but illustrates this point again. On January 22, 2000, 
Barbara Jackson complained of chest pains. Her coworkers thought she 
might have had a heart attack. They called an ambulance. She is from 
Melrose Park, IL. The ambulance driver suspected a heart attack, but 
the emergency room personnel waited nearly an hour to do an EKG. More 
egregiously, they gave her drugs that actually precipitated the heart 
attack. The attack was so serious this woman lapsed into a coma. She is 
now in a vegetative state living with her sister who cares for her 
every single minute of every day.
  Her family believes she is capable of feeling pain. Proper medical 
treatment, nursing treatment, and rehabilitation will cost more than 
$20 million if she lives to full life expectancy, which her doctors 
expect.
  A mistake made in an emergency room, a woman in a vegetative state 
for the rest of her time on Earth, and the jury of the U.S. Senate has 
reached a verdict. For pain and suffering, in Barbara Jackson's case, 
no more than $250,000.
  Not only do caps not work to bring down malpractice premiums in case 
after case, they are fundamentally unjust and unfair. There has to be a 
better way. We have to deal with a standard that will bring down 
malpractice premiums but not at the cost of fairness and justice.
  It is a simple fact of life, and one which I wish were not the case, 
that more and more medical errors are being committed. We cannot expect 
doctors and hospitals to be perfect. They are human. There are times, 
unfortunately, when they are negligent, when they do not meet the 
standard of care which we can expect of every physician and every 
medical provider. In those instances, they should be held accountable, 
as all of us are held accountable for our wrongdoing.
  That accountability means they should be held responsible for the 
real problems they create, the damages that are created by their 
misconduct.
  We have had so many surveys of hospitals. A study recently found that 
injuries in U.S. hospitals in the year 2000 resulted in 32,600 deaths. 
Some have estimated some 98,000 people die each year from malpractice. 
Only a small percentage of these cases ever end up in a lawsuit, ever 
end up in a trial.
  We need to address this issue at three levels. First, let us make the 
practice

[[Page 6731]]

of medicine safer, and we can do that. Secondly, let us deal with tort 
reform. I have told my friends who are trial lawyers--and I practiced 
law myself before I came to the Senate--we have to step up to and 
accept responsibility for change that will reduce the number of 
frivolous lawsuits and give those truly deserving their day in court. 
Third, insurance companies have to be held accountable for their 
misconduct. If they are gouging, if they are overpricing, then we, as a 
government, need to stand up to that industry as well.
  Three parts: Reducing medical errors, tort reform, and insurance 
reform are the way to approach it. I say to my colleagues on the other 
side of the aisle, join me in a bipartisan effort now to go beyond this 
issue of caps, which will not solve the problem, caps that are 
fundamentally unfair, and let us talk about real solutions.
  Think about this bill that is before us for a moment. This bill says 
that if one is brought to an emergency room because they were in 
serious trouble and medical conditions are such that warrant it, they 
will be limited in how much money one can recover if they are an 
innocent victim of medical malpractice. However, if one is admitted to 
the hospital, through the front door and not the emergency room, these 
limitations would not apply.
  Think of it as well from the OB/GYN point of view. It is true that 
OB/GYN premiums have gone up astronomically in some areas, and we have 
to zero in on that, but we are saying someone who is a victim of 
malpractice by an obstetrician gynecologist will have a limitation on 
how much they can recover while someone else in the same hospital being 
operated on by a doctor with a different specialty will not be subject 
to these limitations. That is just fundamentally unfair.
  I think what we need to do is open the door for conversation, but 
first we need to close the door on this concept. This is not the right 
approach.
  I have met over the last several months with scores of doctors and 
hospital administrators in my State, and I say to them in all 
seriousness and sincerity that we have a problem in Illinois, as well 
as a national problem.
  I have invited Members to come to the table after this legislation is 
defeated today and sit down in an honest, bipartisan fashion to look 
for solutions that will solve this problem. I believe we can find it.
  The Senator from South Carolina who is presiding has joined me in 
bipartisan legislation that really tries to approach this from a new 
innovative, creative, and positive point of view that does work. I 
think we can achieve that goal. But to achieve it we need to bring the 
medical professionals into the room along with those who are 
representing the victims of medical malpractice. Once that conversation 
takes place, if it takes place in good faith, I am confident we can 
come up with solutions.
  I urge my colleagues to vote against the motion for cloture on 
proceeding to this bill. It has not been subjected to hearings. It 
includes things which were not talked about on the floor--protection 
for insurance companies, protection for pharmaceutical companies and 
medical device manufacturers. Let us get down to the business of trying 
to solve this problem and doing it in a fashion that is reasonable and 
effective and bipartisan.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I think we are actually making progress. I 
am delighted to hear the Senator from Illinois agree with what it 
sounded like the minority leader stated earlier, that they have some 
problems with this bill as written, and they acknowledge the problem of 
medical liability crisis exists and suggest we ought to try to find 
some way to address that crisis which they concede is very real.
  Senator Durbin said it is not the right approach. My question would 
be, Well, what is the right approach? Senator Daschle said there is no 
reason to differentiate between those who walk in the front door of a 
hospital and those who get emergency care. I will concede the good 
faith of that question. The problem is we offered that bill earlier and 
were unsuccessful in getting cloture so we could actually get to the 
merits of the bill and debate it. Of course, not until we get to that 
60-vote hurdle where we can actually move the bill on to the floor can 
the bill be amended. Indeed, that is how the Senate does its work. But 
I wonder whether it is the intention of our friends on the other side 
of the aisle to have a good-faith debate about how to solve this 
problem.
  For example, rather than take what I consider to be the constructive 
approach the Senator from Illinois and the Senate minority leader have 
taken to criticize the content of the bill but to acknowledge we have a 
problem so perhaps we can then get to a solution of that problem, the 
the ranking member of the Senate Judiciary Committee called it a 
partisan approach and then criticized the Senate leadership. He said, 
In my 29 years here in the Senate I have never seen so little 
accomplished.
  I think the reason why we are not accomplishing any reform or any 
real solution to what is a very real problem is because our colleagues 
on the other side of the aisle simply won't let us call the bill up, 
have a debate, consider amendments, and try to solve what is a very 
real crisis in this country.
  Even though we are calling this a medical liability reform bill, this 
is not something we are doing out of the goodness of our hearts for the 
medical profession. While I respect members of the medical profession 
who dedicate their lives to curing illness and addressing medical 
needs, as well as health care providers who run hospitals and a whole 
host of other allied health care facilities, that is not what drives me 
to see the need for this bill. The reason I think this bill needs to be 
passed, or some version of it after amendment if the Senate reaches 
consensus on a solution to the problem, is because I know everyone 
within the sound of my voice and literally everyone across the country 
who is alive today will at some point in their lives be a patient. They 
will need access to good quality health care.
  What is happening today in this country because of this medical 
liability crisis is denying patients--that is the American people--
access to health care they need in order to lead a good quality of life 
and in order to enjoy life for themselves and their children and their 
other loved ones.
  I want to comment briefly on a suggestion I have heard from our 
colleagues on the other side of the aisle. They said that with this 
particular solution--that is a cap of $250,000 on non-economic 
damages--people walk away with nothing when they go to court. The truth 
is, in California, which has a medical liability reform law very 
similar to what we are proposing here today, economic damages, 
including medical expenses, are compensated completely. Indeed, in 
December of 2002, in Alameda County, there was an $84 million award to 
a 5-year-old boy who has cerebral palsy and is a quadriplegic because 
of delayed treatment of jaundice after birth. That would only be 
possible because what is actually being compensated there is the very 
real economic loss suffered as a result of that horrendous injury, 
something we all regret.
  The suggestion we are going to turn people out of court with nothing 
to show for it and we are not going to compensate people for their 
injuries received in the medical context caused by the fault of another 
is not true. I wonder how anyone can stand up and suggest we are 
somehow trying to deny people a remedy. That is certainly not the case.
  We know this kind of law will have a positive impact. Even in the 
State of Texas, which I represent, where we passed not a $250,000 cap 
but indeed a higher cap on non-economic damages last September, we have 
seen one medical liability insurance company reduce its rates by 12 
percent across the board, sort of a start. Another medical liability 
insurance carrier has cancelled an anticipated 19-percent increase. 
Obviously, we will see how this all plays out, but we already know it 
has a very real and positive impact as demonstrated by the evidence.

[[Page 6732]]

  I see the Senator from Virginia and I want to make sure he has all 
the time he needs to speak. But I want to also comment on the effect of 
high medical liability insurance rates on the cost of health care and 
on the pressure being put on employers and others who provide health 
insurance to their employees to drop their employees from any sort of 
health coverage, exacerbating the crisis we have in this country of too 
many people who do not have access to health insurance and the fact we 
have many emergency rooms put on divert status with patients being 
redirected elsewhere in true emergencies because people who do not have 
health insurance have nowhere else to turn if they don't have money. 
They know they can be treated in an emergency room. They know they 
can't be turned away. But the fact is about 80 percent of the people 
who go to emergency rooms are being treated for medical conditions that 
could be treated in a clinic or a doctor's office much more cheaply, 
more humanely, and in a way that would help us address this crisis in 
access to good quality health care.
  Finally, I know we have heard a lot of discussion on the floor of the 
Senate, as we should, about the concern of every person in this country 
who wants to work to find a good job so they can provide for themselves 
and their family. But the cost of health care in this country is 
killing our recovery. It is doing so from the standpoint of putting 
increased financial burdens on employers who want to provide health 
insurance to their employees but simply are not able to add new 
positions in their company because they know that in addition to salary 
they are going to have to pay benefits, including health care costs in 
many instances, and they are simply priced out of the market.
  If our colleagues on the floor of the Senate want to do something 
about improving access to good quality health care, if they want to do 
something about the fact many people don't have health insurance and 
need health care coverage, if they want to do something about America's 
competitiveness in this global economy, and make sure we keep more jobs 
in this country rather than see them go to China, India, or anywhere 
else, they should vote to let this bill come forward and have a debate 
about what this bill ought to look like to address the medical 
liability crisis that even the Senator from Illinois and the minority 
leader admit we have in this country today.
  I implore Members to reconsider their obstruction. By obstructing 
progress on this vote we are not solving any problems. People are maybe 
making political points, but it is hard to see what kind of political 
point you make by obstructing good, commonsense legislation like this. 
I implore them to reconsider their obstruction and ask that they vote 
for cloture so we can move on and begin to solve this very real problem 
on behalf of the American people.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Virginia.
  Mr. WARNER. Madam President, I commend our distinguished colleague 
from Texas. He spoke from the heart on this measure. It is a matter of 
utmost seriousness.
  I ask unanimous consent I be made a cosponsor on this pending 
legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Madam President, I rise again to join the Senator from 
Texas and many other Members on this side of the aisle in strong 
support of health care liability reform.
  My father was a medical doctor. He was an obstetrician. I am grateful 
to so many doctors from whom I am hearing all across America about this 
crisis. My father had no great interest in politics. He voted 
regularly; I remember that. I think most physicians find little time to 
involve themselves in politics. But this is a political question. We 
have to look at it fair and square and call it as it is.
  America is crying out from every corner of our land, from all 50 
States, for relief from the oppressive number of lawsuits brought 
against the medical profession, a profession that is not interested in 
politics. They are only interested in caring for the citizens of this 
Nation.
  I am proud to stand with the distinguished majority leader, Mr. 
Frist, the distinguished Senator from New Hampshire, the Senator from 
Texas, the Senator from Nevada, and others, time and time again in this 
Senate to urge this body to rise above politics and extend a helping 
hand to the medical profession.
  Early this year, I was pleased to offer my own amendment on health 
care liability reform. My amendment was called the Protect the Practice 
of Medicine Act, amendment No. 2624, but procedural impediments--I have 
to recognize we follow the rules around here--prevented the Senate from 
addressing that bill. My amendment was supported by the American 
Medical Association, the American College of Surgeons, and a number of 
other associations representing the men and women in our medical 
profession. Unfortunately, a procedural move by the opponents precluded 
the Senate from voting on this amendment.
  I stand today in hopes there will be a vote on this measure. This 
measure is very much like the measure I put forth; indeed, the goals 
are common.
  Opponents of health care liability reform have been using procedural 
tactics in the Senate to prevent an up-and-down vote on these issues 
for many years. The consequences are grave. Men and women continue to 
leave the practice of medicine due to the high cost of malpractice 
insurance, and patients continue to lose access to medical health care.
  We have all heard the real stories from doctors about the rapidly 
increasing costs of medical malpractice insurance. In some States, 
malpractice insurance premiums have increased as much as 75 percent in 
1 single year.
  As have others in this body, I have received numerous letters from 
medical professionals from the Commonwealth of Virginia and across the 
Nation that share with me the very real difficulties they encounter 
with malpractice insurance and the consequences of this problem.
  Let me read one of those letters sent to me by a doctor in Virginia. 
The doctor writes:

       I am writing you to elicit your support and advice for the 
     acute malpractice crisis going on in Virginia. . . . I am a 
     48-year-old single parent of a 14 and 17 year old. After all 
     the time and money spent training to practice OB/GYN--

  That is obstetrics, my father's profession, or specialty--

       I find myself on the verge of almost certain unemployment 
     and unemployability because of the malpractice crisis. I have 
     been employed by a small OB/GYN group of doctors for the last 
     7 years. . . . Our malpractice premiums were increased by 60 
     percent in May of 2003. . . . The prediction from our 
     malpractice insurance carrier is that our rates will probably 
     double at our next renewal date in May 2004. The reality is 
     we will not be able to keep the practice open and cover the 
     malpractice insurance along with other expenses of medical 
     practice.

  Another letter writer from the Midwest:

       Due to the rapid increase of premiums, the crisis is one of 
     affordability and availability of insurance for physicians. . 
     . . The result of this is premature retirement, physicians 
     moving to more favorable areas--

  Moving from one State to another State--

       discontinuing high-risk procedures or finding other ways to 
     make a living out of medicine. All of this, of course, 
     affects the patients, who have increasing difficulty finding 
     medical care.

  Letter after letter are stories of the effect this crisis is having 
across America.
  Time magazine and Newsweek have thoroughly detailed the crisis 
doctors are facing. I have the two recent issues entitled ``Lawsuit 
Hell,'' and the second, ``The Doctor is Out.''
  It is being discussed all across America. That is why it is so 
imperative this institution, the Senate, be given the opportunity to 
vote on this issue.
  In June of 2003, Time magazine had a cover story on the effects of 
rising malpractice insurance rates. The story entitled ``The Doctor is 
Out'' discusses several doctors all across America who have had to 
either stop practicing medicine or had to take other action due to 
increased insurance premiums. One example cited in the Times article is 
the case of Dr. Mary-Emma Beres. Time reports:


[[Page 6733]]

       Dr. Mary-Emma Beres, a family practitioner in Sparta, N.C., 
     has always loved delivering babies. But last year, Dr. Beres, 
     35, concluded that she couldn't afford the tripling of her 
     $17,000 malpractice premium and had to stop. With just one 
     obstetrician left in town for high-risk cases, some women who 
     need C-sections now must take a 40-minute ambulance ride.

  Dr. Beres' case makes clear that not only doctors are being affected 
by the medical malpractice crisis but patients, as well. With increased 
frequency due to rising malpractice rates, more and more patients are 
not able to find the medical specialists they need in their community 
or in a neighboring community and have to travel long distances or even 
go out of State, to other States, where there has been closer control 
on the types of lawsuits that generate these exorbitant fees.
  Newsweek magazine had a cover story on the medical liability crisis. 
That cover story was entitled ``Lawsuit Hell.'' I was struck by the 
feature in this magazine about a doctor from Ohio who saw his 
malpractice premiums rise in 1 year from $12,000 to $57,000. As a 
result, this doctor ``decided to lower his bill by cutting out higher 
risk procedures like vasectomies, setting broken bones, and delivering 
babies''--even though obstetrics was his favorite part of practice. Now 
he glances wistfully at the cluster of baby photos still tacked to a 
wall in his office. `I miss that terribly,' he says.''
  While these stories are compelling on their own, the consequence of 
this malpractice crisis can even be greater.
  On February 11, 2003, a woman by the name of Ms. Leanne Dyess of 
Gulfport, MS, shared with both the HELP Committee--of which the 
distinguished chairman is present managing this bill--and the Judiciary 
Committee her very personal story about how this crisis has affected 
her.
  She told us how, on July 5, 2002, her husband Tony was involved in a 
single- car accident. He was rushed to the hospital in Gulfport where 
he had head injuries and received medical attention. Tony could not be 
treated at the Gulfport hospital because they did not have the 
specialist necessary to take care of him. After a 6-hour wait, he was 
airlifted to the University Medical Center. Today, Tony is permanently 
brain damaged.
  According to Mrs. Dyess, no specialist was on staff that night in 
Gulfport because rising medical liability costs had forced almost all 
of the brain specialists in that community to abandon their practices. 
As a result, Tony had to wait 6 hours before the only specialist left 
in Gulfport could treat Tony to reduce the swelling in his brain.
  As you can see, without a doubt, the astronomical increases in 
medical malpractice insurance premiums are having wide-ranging effects. 
It is a national problem, and it is time for a national solution.
  President Bush has indicated that the medical liability system in 
America is largely responsible for the rising costs of malpractice 
insurance. The American Medical Association and the American College of 
Surgeons agree with him, as does almost every doctor in Virginia with 
whom I have discussed the issue.
  The President of the AMA, Dr. John Nelson, has publicly stated:

       We cannot afford the luxury of waiting until the liability 
     crisis gets worse to take action. Too many patients will be 
     hurt.

  The American College of Surgeons concurs by stating:

       More and more Americans aren't getting the care they need 
     when they need it. . . . The ``disappearing doctor'' 
     phenomenon is getting progressively and rapidly worse. It is 
     an increasingly serious threat to everyone's ability to get 
     the care they need.

  Let me state unequivocally that I agree with our President, with the 
AMA, with the American College of Surgeons, and with the vast majority 
of doctors all across Virginia.
  While the amendment I offered earlier this year is somewhat different 
from the measure before us today--the goals are the same: to ensure 
that patients have access to quality health care and to protect the 
practice of medicine from frivolous lawsuits and runaway jury verdicts.
  The legislation before us today is a commonsense solution to a 
serious problem, and it is time for us to vote up or down on this 
legislation.
  Over the past several weeks, I have listened closely to my colleagues 
speak on the floor of the U.S. Senate about the importance of having an 
up-or-down vote on particular legislation. And, in response, I ask, how 
is this bill any different?
  I, for one, intend to vote to end the filibuster on health care 
liability reform legislation. The consequences of continued dilatory 
tactics are too profound to patients and doctors in this country. I 
urge my colleagues to do the same.
  Madam President, I hope this institution can live up to its 
responsibility as duly elected representatives of the people of this 
country and respond to the cries of the people of this country to 
address this situation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Madam President, I congratulate the senior Senator from 
Virginia for his excellent statement, especially for reflecting on some 
of the specific personal events which this bill tries to address: 
People who have been actually impacted by the fact they have not had a 
doctor available because the doctor can no longer afford to practice 
the type of medicine which this bill addresses, the delivering of 
children and emergency room medicine.
  Madam President, I ask unanimous consent that Senator Hagel be added 
as a cosponsor of S. 2207.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GREGG. Madam President, I wish to, once again, recite what this 
bill is about because there has been some I am afraid, coming from the 
other side in the representations that were made.
  Basically, what we are dealing with is a bill that is going to try to 
make medicine more readily available to women who are having children.
  In rural parts of this country today, for example, in northern New 
Hampshire, if a woman is having a child, she has to drive a long way to 
see a doctor because there is nobody practicing obstetrics in northern 
New Hampshire. The baby doctors in that part of the State have found 
their liability premiums so exceed what they can earn that they can no 
longer afford to practice medicine. So women are put at risk because 
they have to get in their car and drive a long way on snowy roads, and 
it is very difficult, especially as they move into the later terms of 
their pregnancy.
  Secondly, this deals with people who walk into an emergency room, 
have an emergency and need to receive care. As was pointed out by the 
Senator from Tennessee, the majority leader, who is a doctor, there is 
a window of opportunity to care for people who have experienced trauma. 
If there isn't a doctor in that emergency room to take care of that 
individual, then you have a serious problem. This bill tries to address 
that by making affordable the practice of medicine in an emergency 
room.
  Today, we have a problem. Doctors who practice in emergency rooms do 
not make a lot of money. They are not making enough money to cover the 
premiums for the liability insurance they have because of the massive 
amounts of lawsuits which are filed.
  This bill will redress that issue. It will still give recovery to 
people. It will allow them to recover all the medical costs they have. 
It will allow them to recover all their compensation costs, and it will 
allow them to recover something for what is known as pain and 
suffering. But it will also allow doctors to practice their disciplines 
because it will make it possible for baby doctors and emergency room 
doctors to be able to afford the cost of the premium of their liability 
insurance--something many cannot do today, so they are getting out of 
the practice. It will, therefore, give women better care and people who 
experience trauma better care in this country.
  Madam President, it is my understanding, at this time, the Senator 
from West Virginia is to be recognized. Is that correct?

[[Page 6734]]

  The PRESIDING OFFICER. The Senator has 40 minutes under his control.
  The Senator from West Virginia.
  Mr. BYRD. I thank the Chair.


                                  Iraq

  Madam President, I have watched with heavy heart and mounting dread 
as the ever precarious battle to bring security to postwar Iraq has 
taken a desperate turn for the worse in recent days and hours. Along 
with so many Americans, I have been shaken by the hellish carnage in 
Fallujah and the violent uprisings in Baghdad and elsewhere. The 
pictures have been the stuff of nightmares, with bodies charred beyond 
recognition and dragged through the streets of cheering citizens. And 
in the face of such daunting images and ominous developments, I have 
wondered anew at President Bush's stubborn refusal to admit mistakes or 
express any misgivings over America's unwarranted intervention in Iraq.
  During the past weekend, the death toll among America's military 
personnel in Iraq topped 600--including as many as 20 American soldiers 
killed in one 3-day period of fierce fighting. Think of it. Many of the 
dead, most, perhaps, were mere youngsters--mere youngsters--just 
starting out on the great adventure of life. But before they could 
realize their dreams, they were called into battle by their Commander 
in Chief, a battle that we now know was predicated on faulty 
intelligence and wildly exaggerated claims.
  As I watch events unfold in Iraq, I cannot help but be reminded of 
another battle, at another place and another time, that hurtled more 
than 600 soldiers into the jaws of death because of a foolish decision 
on the part of their commander. The occasion was the Battle of 
Balaclava on October 25, 1864, during the Crimean war, a battle that 
was immortalized by Alfred Lord Tennyson in his poem ``The Charge of 
the Light Brigade.''

     ``Forward, the Light Brigade!''
     Was there a man dismay'd?
     Not tho' the soldier knew
     Someone had blunder'd:
     Their's not to make reply,
     Their's not to reason why,
     Their's but to do and die:
     Into the valley of Death
     Rode the six hundred.

  Tennyson got it right--someone had blundered. It is time we faced up 
to the fact this President and his administration blundered as well 
when they took the Nation into war with Iraq without compelling reason, 
without broad international or even regional support, and without a 
plan for dealing with enormous postwar security and reconstruction 
challenges posed by Iraq. And it is our soldiers, our men and women, 
our own 600 and more who are paying the awful price for this 
administration's blunder.
  In the runup to the war, this President and his advisors assured the 
American people we would be greeted as liberators in Iraq. Yes, this 
Vice President, Vice President Cheney, assured the American people we 
would be greeted as liberators in Iraq. For a brief moment, that 
outcome seemed possible. One year ago this week, on April 9, 2003, the 
mood in many corners of the Nation was euphoric as Americans witnessed 
the fall of Baghdad and the jubilant toppling of a massive statue of 
Saddam Hussein. Less than 4 weeks later, President Bush jetted out to 
an aircraft carrier parked off the coast of California to cockily 
declare to the world the end of major combat operations in Iraq. For 
those with tunnel vision, the view from Iraq looked rosy. Then Baghdad 
had fallen, Saddam Hussein was on the run, and U.S. military deaths had 
been kept to a relatively modest number, a total of 138 from the 
beginning of combat operations through May 1, 2003.
  But the war in Iraq was not destined to follow the script of some 
idealized cowboy movie of President Bush's youth, where the good guys 
ride off into a rose-tinted sunset, all strife settled and all 
wrongdoing avenged. The war in Iraq is real. And as any soldier can 
tell you, reality is messy and bloody and scary.
  Nobody rides off into the sunset for fear the setting sun will blind 
them to the presence of the enemies around them. So the fighting 
continues in Iraq. It is going on right now, right this minute, long 
past the end of major combat operations, and the casualties have 
continued to mount even now, even this hour, even this minute. As of 
today, more than 600 military personnel have been killed in Iraq and 
more than 3,000 wounded.
  Now after a year of continued strife in Iraq comes word that the 
commander of forces in the region is seeking options to increase the 
number of U.S. troops on the ground, if necessary. Surely I am not the 
only one who hears echoes of Vietnam in this development. I was here in 
this Chamber when the word went out in those days to send more, send 
more men. We will be out by Christmas, yes.
  Surely this administration recognizes that increasing the U.S. troop 
presence in Iraq will only suck us deeper and deeper and deeper into 
the maelstrom, into the quicksand of violence that has become the 
hallmark of that unfortunate, miserable country. Starkly put, at this 
juncture, more U.S. forces in Iraq equates more U.S. targets in Iraq.
  Again, Tennyson's words bespeak a cautionary tale for the present:

     Cannons to the right of them,
     Cannons to the left of them,
     Cannons in front of them
     Volley'd and thunder'd;
     Storm'd at with shot and shell,
     Boldly they rode and well,
     Into the jaws of Death,
     Into the mouth of Hell
     Rode the six hundred.

  Like Tennyson's Light Brigade, American military personnel have 
proved their valor, have proved their mettle, have proved their bravery 
in Iraq. In the face of a relentless and seemingly ubiquitous 
insurgency, they have performed with great courage and great resolve. 
They have followed the orders of their Commander in Chief, regardless 
of the cost. But surely some must wonder why it is American forces that 
are still shouldering the vast majority, the overwhelming majority of 
the burden in Iraq, 1 year after the liberation of the country.
  Where are the Iraqis? Where are they? What has happened to our much-
vaunted plans to train and equip the Iraqi police and Iraqi military to 
relieve the burden on U.S. military personnel? Could it be that our 
expectations exceeded our ability to develop these forces? Could it be 
that, once again, the United States underestimated the difficulty of 
winning the peace in Iraq?
  Since this war began, America has poured $121 billion into Iraq for 
the military and for reconstruction. But this money cannot buy 
security; this money cannot buy peace; and $121 billion later, only 
2,324 of the 78,224 Iraqi police are ``fully qualified,'' according to 
the Pentagon. Nearly 60,000 of those same police officers have had no 
formal training--none. It is no wonder security has proved to be so 
elusive. The time has come for a new approach in Iraq.
  The harsh reality is this: One year after the fall of Baghdad, the 
United States should not be casting about for a formula to bring 
additional U.S. troops to Iraq. The United States should instead be 
working toward an exit strategy. The fact that the President has 
alienated friend and foe alike by his arrogance in ``going it alone'' 
in Iraq and has made the task of internationalizing postwar Iraq an 
enormously difficult burden should not deter our resolve.
  Pouring more U.S. troops into Iraq is not the path to extricate 
ourselves from that miserable and unfortunate country. We need the 
support and endorsement of both the United Nations and Iraq's neighbors 
to truly internationalize the Iraq occupation and take U.S. soldiers 
out of the crosshairs of angry Iraqis.
  From the flood of disturbing dispatches from Iraq, it is clear that 
many Iraqis, both Sunni and Shiite, are seething under the yoke of the 
American occupation. The recent violent uprising by followers of a 
radical Shiite cleric is by far the most troubling development in 
months and could signal America's worst nightmare--a civil war in Iraq 
that pits moderate Shiites against radical Shiites. Layered over the 
persistent insurgency being waged by disgruntled Iraqi

[[Page 6735]]

Sunnis and radical Islamic operatives, a Shiite civil war could be the 
event that topples Iraq from instability into utter chaos.
  As worrisome as these developments are in and of themselves, the fact 
that they are occurring as the United States hurtles toward a June 30 
deadline to turn Iraq over to an interim Iraqi government--a government 
that has yet to be identified, established, or vetted--adds an element 
of desperation to the situation.
  Where should we look for leadership? To this Congress? To this 
Senate? Should we look here?
  This Senate, the foundation of the Republic, has been unwilling to 
take a hard look at the chaos in Iraq. Senators have once again been 
cowed into silence. Where are Senators on this issue? Where are they? 
They are of many different opinions, I am sure. Why are they not here 
to express them? Senators have once again been cowed into silence and 
support, not because the policy is right, but because the blood of our 
soldiers and thousands of innocents is on our hands.
  Questions that ought to be stated loudly in this Chamber are instead 
whispered in the halls. Those few Senators with courage to stand up and 
speak out are challenged as unpatriotic and charged with sowing seeds 
of terrorism. It has been suggested that any who dare to question the 
President are no better than the terrorists themselves. Such are the 
suggestions of those who would rather not face the truth.
  This Republic was founded in part because of the arrogance of a king 
who expected his subjects to do as they were told, without question, 
without hesitation. Our forefathers overthrew that tyrant and adopted a 
system of government where dissent is not only important, it is also 
mandatory. Questioning flawed leadership is a requirement of this 
Government. Failing to question, failing to speak out, is failing the 
legacy of the Founding Fathers.
  When speaking of Iraq, the President maintains that his resolve is 
firm, and indeed the stakes for him are enormous. But the stakes are 
also enormous for the men and women who are serving in Iraq and who are 
waiting and praying for the day they will be able to return home to 
their families, their ranks painfully diminished but their mission 
fulfilled with honor and dignity.
  The President sent these men and women into Iraq, and it is his 
responsibility to develop a strategy to extricate them from that 
troubled country before their losses become intolerable.
  It is staggeringly clear that the administration did not understand 
the consequences of invading Iraq a year ago, and it is staggeringly 
clear that this administration has no effective plan to cope with the 
aftermath of the war and the functional collapse of Iraq. It is time--
past time--for the President to remedy that omission and to level with 
the American people about the magnitude of mistakes made and lessons 
learned. America needs a roadmap out of Iraq, one that is orderly and 
astute, else more of our men and women in uniform will follow the fate 
of Tennyson's doomed Light Brigade.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Madam President, I came to speak on medical malpractice. 
How much time is remaining on this side?
  The PRESIDING OFFICER. There are 9 minutes remaining.
  Mr. BOND. Madam President, I wish to save 3 minutes, if you will 
advise me. I believe another colleague is coming.
  I do have to make one or two quick remarks about this subject of 
Iraq. When we went into Iraq, 77 Members of this body believed the 
intelligence, that there was a deadly force, a radical tyrant there who 
needed to be removed.
  One may argue about the intelligence. The intelligence was not as 
good as it should have been, and that is why we on the Intelligence 
Committee have been looking into the evidence. But there is no 
question, what David Kay said afterward when he did the work of the 
Iraqi Survey Group, Iraq was a far more dangerous place than we even 
imagined it.
  We heard from soldiers. I talked with soldiers who have been there. 
They know what we are doing. They know the atrocities that went on. 
They know Iraq was a place of weapons of mass destruction, that 
biological and chemical weapons had been manufactured before, with 
wide-open opportunities for terrorists in Iraq to get those weapons and 
to use them. This was a clear-cut danger, not only to the people of 
Iraq who were suffering every day--literally hundreds of thousands 
murdered, neighbors murdered--but also a harbor for terrorists in that 
country and around the world.
  What we did in Iraq was dismember the Saddam Hussein regime and wipe 
out the terrorist holding pattern of government, wipe out the 
protective elements Afghanistan's Taliban government and Iraq's Saddam 
Hussein have given the terrorists.
  Yes, there is deadly fighting going on. There are tragedies every 
day, and it was laid out by al-Zarqawi, the terrorist leader in 
northern Iraq who has been working there for years to attack not only 
American soldiers but Iraqi civilians. They are attacking those 
civilians, but they are aiming at the American public opinion. They are 
aiming at this body. They want to get this body to say we are going to 
cut and run so they can have the opportunity to run that country one 
more time.
  I believe we cannot forsake and disregard the sacrifices made by the 
brave men and women who have deposed and captured Saddam Hussein and 
opened up the opportunity for a free and vibrant Iraq to flourish in 
the Middle East. I hope we will stay the course, and I think my 
colleagues will want to talk about it.
  I wanted to address today the problem of medical malpractice 
insurance rates and how trial lawyers have driven them through the top 
of the roof.
  Nineteen States are in a full-blown crisis, including my home State 
of Missouri. Premium increases in 2002 were 61 percent, on top of 
increases in the previous year of 22 percent.
  Almost a third of the physicians in Missouri say they are considering 
leaving their practice altogether. It is happening in Missouri and 
across the country. But this is not only a problem for doctors. They 
are well educated. They can move elsewhere and resume their practice, 
as difficult and as unfair as that is. The real damage, the real pain, 
is being felt by their patients.
  The headlines and the horror stories continue to accumulate, and 
patients continue to suffer in Missouri and across the country. The 
bill before us on which we are going to vote today is a narrow, 
targeted, short-term solution to a growing national crisis. This bill 
protects patient access to emergency and trauma care services, as well 
as access to care for women and babies.
  I have come to this floor many times to talk about protecting access 
to care for pregnant women. It is a real problem in Missouri. Last 
year, Missouri lost a total of 33 obstetricians. Let me give a few 
examples of the compromised care in Missouri.
  A St. Joseph, MO, practice, the only practice in northwest 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 had been in private practice for 3 years 
experienced a 400-percent increase in liability premiums for the past 3 
years. He got a quote of $108,000 for the current year. The OB/GYN is 
considering quitting obstetrics to find more affordable insurance to do 
something else.
  A gynecological oncologist in Missouri left a group practice, 
eliminated a rural outreach clinic because of rising professional 
medical liability premiums. Women with gynecological cancers in Ste. 
Genevieve, Carbondale, and Chester now have to drive over 100 miles to 
see a gynecological oncologist.
  On the eastern side of the State in St. Ann, MO, an OB/GYN was forced 
to close his practice last year because of medical liability costs that 
rose 100 percent. Previously, that practice had delivered about 400 
babies a year.
  Twelve doctors at the Kansas City Women's Clinic used to serve women 
in

[[Page 6736]]

both Missouri and Kansas, but because of the rising medical liability 
insurance rates in Missouri, the clinic could not find a single company 
that would offer them a medical malpractice insurance policy they 
needed in their office in Missouri.
  As a result, at the end of 2002, they closed their doors to Missouri 
patients. There were over 6,000 visits a year in their Missouri office. 
Now they have to go to Kansas to see an OB/GYN or someplace else.
  Access to OB/GYN services is not the only care in jeopardy. This 
crisis threatens access to emergency and trauma services as well. To 
secure affordable medical liability insurance or to minimize their risk 
of lawsuits, many physicians, including neurosurgeons, orthopedic 
surgeons, cardiothoracic surgeons, obstetricians, and cardiologists are 
forced to stop serving ``on call'' to hospital emergency departments.
  Today, in many hospitals there are no neurosurgeons available to 
treat patients with major head trauma or no orthopedic surgeon to care 
for patients with open fractures.
  Patients suffering from head and spinal injuries, broken bones, 
gunshot wounds, or other major trauma are airlifted to other medical 
facilities. Critical lifesaving facilities are no longer available, and 
in many extreme cases trauma centers have been forced to shut down 
completely. This is a danger that speaks in volumes.
  As my colleagues know, there is a ``golden hour'' that trauma 
patients have from the time they are injured to the time they get 
trauma care. Closing trauma centers increases the odds that patients 
won't get the care they need in that hour.
  In Missouri the numbers speak volumes: 20 percent of all the 
neurosurgeons in Kansas City, MO have quit or moved out of the area in 
the past 12 months; 5 out of 25 neurosurgeons in private practice in 
St. Louis quit last year; 21 out of 79 neurosurgeons surveyed in 
Missouri are considering leaving the State; 2 trauma centers in Kansas 
City have closed in the past 12 months due to lack of physician 
coverage.
  According to Dr. Steve Reintjes, a practicing physician at the KC 
Neurosurgery Group in Kansas City, ``Patients are dying before they get 
to us because the trauma center's closed.''
  Patients 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 and across the country.
  The bill before us today provides a sensible, short-term solution to 
a growing national crisis, and I urge my colleagues to support it.
  Madam President, I see my colleague from Arizona has joined us. I 
yield the remainder of my time to the Senator from Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Madam President, I thank my colleague from Missouri. I 
also paid close attention to his statement. I think it is a very 
important one.
  Madam President, how much time is remaining?
  The PRESIDING OFFICER. There are 2 minutes 45 seconds remaining.
  Mr. McCAIN. I ask unanimous consent that I be allowed an additional 
10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. I thank the Chair.


                                  Iraq

  Mr. McCAIN. Madam President, I take the floor to respond to comments 
made by Senator Byrd, but also to general comments that have been made 
over the last 48 hours as we all recognize this is a very difficult 
time for us in Iraq.
  I do not have to review with any of my colleagues the events of the 
last few days and the tragedies in the loss of these brave young 
Americans who are fighting and sacrificing for someone else's freedom.
  I have also heard a number of observers, including some Senators, who 
have compared events in Iraq to what we went through in Vietnam. I 
happen to know something about Vietnam, and I know we do not face 
another Vietnam. I need not go into the long history of our involvement 
in that nation, the reasons for our failure, but the realities on the 
ground in Iraq are clear.
  There is no superpower that is backing these minority of Shias and 
Sunnis who are seeking to gain political power through the use of a 
gun, and there is no comparison as far as the sanctuary which this 
enemy has. We grant them no sanctuary.
  Some have stated we are on the defensive. I would argue that, as we 
speak, in Fallajuh and other places, our Marines and Army are on the 
offensive, dedicated to the proposition that no group, no matter what 
their ethnic or religious beliefs are, will take control of Iraq.
  Control of Iraq will be the result of a democratic process and a 
representative one, part of which is the turning over of power to the 
Iraqi people on June 30.
  We have had this argument back and forth: Should we turn over power 
of the government to the Iraqis on June 30? I say yes, and I say yes 
recognizing two realities. One is that it will be a difficult process, 
and we have a lot more planning to do between now and June 30 for that 
transition to take place. The other reality, as far as the security 
situation is concerned, is that America's military will be there in 
force for a significant period of time, and the American people need to 
be told that.
  This is a long, tough, hard struggle. It is hard for countries to 
adopt democracies. It is incredibly difficult when they have never 
known democracy and freedom in the past. A little later, I want to talk 
a little bit more about what happens if we fail, as well as what 
happens if we succeed in Iraq.
  Again, in Vietnam there was superpower support. There were arms and 
political support. We did not have a clear plan for victory, and dare I 
mention that in Vietnam many times we had more casualties in a week, 
sometimes less than a week, than we have had in a year in Iraq.
  To make these comparisons with the Tet offensive or the entire 
Vietnam conflict is not only uninformed but I think a bit dangerous 
because, of course, the specifics of our involvement in that conflict 
fade, as they should, in the memories of the American people.
  What is happening in Iraq today is we have a Sunni insurgency that 
consists of ex-Baathists and Saddam loyalists. They obviously are the 
only people who were better off during Saddam Hussein's regime because 
they were the favored minority that were of the same religion as 
Saddam. They realize they will never run Iraq again because they are in 
the minority. Because they are in the majority, the Shia will probably 
dominate that government, but we also have a constitution in Iraq that 
guarantees the rights of minorities. We are there and a new government 
will be there to guarantee those same rights.
  The realities are the Sunni minority will never control Iraq again. 
We have a small minority of Shias who are trying to grab some political 
power before the July 1 transition. There is very little doubt that 
Sadr's followers are in a distinct minority and the majority of Shias 
still owe allegiance and have allegiance to the Ayatollah Sistani, who 
has argued, perhaps not forcefully enough, that we do not have the kind 
of armed conflict that we are seeing today.
  Is this a difficult political problem? Yes. Is it the time to panic, 
to cut and run? Absolutely not. The vast majority of Iraqi people are 
glad we are there and they state unequivocally that they are better off 
than they were under the regime of Saddam Hussein. Lest time dim our 
memory, let us remember the mass graves that we discovered, the 8- and 
9-year-old boys coming out of prison in Baghdad, the despotic, 
incredibly cruel practices of his two sons. The people of Iraq and 
America and the world are better off with Saddam Hussein gone.
  Now, we can argue about intelligence; we can argue about weapons of 
mass destruction. That is why we have commissions. That is why 
tomorrow, in an almost unprecedented fashion, the

[[Page 6737]]

National Security Adviser to the President will testify before the 9/11 
Commission. I am confident she will perform admirably because she is an 
incredibly intelligent and capable individual.
  The fact is, to argue that we should have left Iraq under the rule of 
this incredibly cruel person who used weapons of mass destruction, who 
had weapons of mass destruction in 1991, was continuing to attempt to 
acquire weapons of mass destruction, and if in power would continue to 
try to acquire those weapons, certainly flies in the face of the facts 
about Saddam Hussein's regime.
  Senator Byrd says we should not have gone into Iraq in the first 
place and that we should not be there now. I respect the view. I 
strongly disagree with it, and I think the facts indicate that is not 
the case. We could argue for days about it, but right now at this 
moment we need to send a message not only to the Sunnis in Iraq and the 
minority of Shias in Iraq who are taking up arms and killing Americans 
that we are there to stay. We are there to stay and we will see it 
through. If we fail, if we cut and run, the results can be disastrous. 
Those results would be the fragmentation of Iraq, to start with, on 
ethnic and religious lines. The second result would be an unchecked 
hotbed of training ground and birthing of individuals who are committed 
to the destruction of the United States of America.
  We will never solve the war on terror as long as there are millions 
of young men standing on street corners all over the Middle East with 
no hope, no job, no opportunities, no future. They are the breeding 
ground. They are the ones who are taken off the streets and taken into 
the madrasahs--funded by the Saudis, by the way--and taught to hate and 
kill, and who want to destroy America, the West, and all we believe in. 
Their hatred is not confined to the United States of America, as the 
citizens of Spain have found out, much to their dismay and tragedy.
  What happens if we win? What happens if we see this thing through? It 
will be hard and it will be difficult and perhaps we need more troops. 
I have said for a long time that we needed more troops of certain 
types, but we have to see this thing through. And what will happen? 
What will happen is that we will affirm the profound and fundamental 
belief upon which this Nation was founded, that all men and women are 
created equal and endowed by their Creator with certain unalienable 
rights, and they are not just in the Western Hemisphere; they are not 
just in the United States of America; they are not just in Europe. The 
people in the Middle East have the same hopes, beliefs, and yearnings 
for freedom and democracy, and they have a right to determine their own 
future just as have our own citizens and citizens throughout the world.
  When they achieve that--and it will be long and hard and difficult--
it will send a message to every despotic regime, every religious 
extremist throughout the Middle East, their day is done because in a 
democratic, free, and open society the people want to live in peace 
with their neighbors and with the world.
  So there is a lot at stake. I grieve every moment, as every American 
does, for the loss of these brave young Americans' lives. They have 
made a supreme sacrifice, and we will honor their memory, but at least 
their grieving families will know they sacrificed in the cause of 
freedom.
  At this particular moment of crisis--and it is a crisis--I urge all 
of my colleagues and all Americans to join together in this noble 
cause. Yes, we are free to criticize; yes, we are free to make 
recommendations and suggestions; but the awesome responsibility lies 
with all of us, led by the President of the United States, as we 
attempt to carry out what is the most noble act that no country in the 
world has ever done besides the United States of America, and that is 
to shed our most precious blood and expend our treasure in defense of 
someone else's freedom in the hope that they may enjoy the fruits of a 
free and open society in a democracy that is guaranteed to all men and 
women by our Creator.
  I yield the floor.
  Mr. DOMENICI. Mr. President, I strongly support the Pregnancy and 
Trauma Care Access Protection Act of 2004.
  I thank Majority Leader Frist for proactively addressing this crisis. 
Across America, health care providers, especially health care providers 
that work in high-risk services such as obstetricians, gynecologists, 
and emergency personnel, have faced difficulty obtaining affordable 
medical liability coverage. Doctors are being hit with dramatic 
increases in the premiums they pay for liability insurance--if 
insurance is even available in their area.
  These soaring costs are depriving patient's access to crucial medical 
care, especially in rural areas, where some services are already in 
short supply. In a number of instances, doctors are forced to relocate 
their practice as hospitals and physicians find it increasingly 
difficult to continue offering certain services. Without real reform, 
more and more Americans will find that health care services are simply 
going to disappear from their communities. And, in my opinion, this is 
unacceptable, especially when a reasonable solution is at hand.
  There is a map I have seen in this chamber. This map is of the United 
States, and each of the States is color-coded: red if the State is in 
crisis, yellow if the State is showing problems, and white if the State 
is currently OK.
  I am very proud that my State, New Mexico, is one of the six states 
that is white. New Mexico is OK because in 1976, the State legislature 
recognized there was a problem with medical malpractice, and they 
passed reform. Part of this reform included caps on noneconomic 
damages. And, as the map shows, it has worked. States with realistic 
limits on noneconomic damages are faring better. Physicians in most 
states with caps on non-economic damages in medical malpractice cases 
pay lower insurance premiums. Reasonable caps keep premiums from rising 
quickly.
  Unquestionably, truly injured parties must have access to our courts 
to adjudicate their claims. And injured patients must be compensated 
for their economic damages such as cost of future medical care and lost 
wages. However, trial lawyers have taken advantage of our civil justice 
system to further their own interests. The explosion of malpractice 
lawsuits and subsequent growth of astronomical jury awards have 
tremendously increased the costs of medical malpractice insurance. 
Premium increases have jumped as much as 81 percent over the last 2 
years, according to some insurers. Frivolous lawsuits combined with 
excessive judgments are destroying the doctor-patient relationship and 
driving professionals out of medical practice all together. This 
reality has terrible consequences for all Americans.
  The bill we are debating today is real reform. It provides an 
unlimited amount of damages for actual economic loss. It caps 
noneconomic damages, it has more reasonable punitive damages awards, a 
uniform statute of limitations, and it provides flexibility to States 
by allowing State laws to supercede Federal limits on damages.
  This bill creates directives for a malpractice system that currently 
is unpredictable and largely random. The rising cost of medical 
malpractice insurance is a serious threat to the well being of American 
citizens and our Nation's healthcare system. It is time for Congress to 
pass meaningful legislation that will address our Nation's health care 
crisis.
  Mr. BYRD. Mr. President, the Senate today is considering a procedural 
vote on a motion to recommit the Foreign Sales Corporation/
Extraterritorial Income (FSC/ETI) legislation. This is an effort to 
bring to the Senate a remodeled bill--one containing popular energy tax 
incentives--that will make a vote against it less politically 
palatable. This is much less about enacting good national policies than 
it is about producing campaign ads. This is less about creating jobs 
than it is about playing partisan politics. It is certainly less about 
the very important business of formulating a comprehensive national 
energy policy than it is about scoring points for the majority's

[[Page 6738]]

campaign contributors. As the Members of this body know well, 
bipartisan energy legislation, including a very similar package of 
energy tax incentives, passed this body twice already--once in April 
2002, in the 107th Congress, and again in July 2003, in the first 
session of this Congress.
  I support, and have strongly advocated, many of these targeted energy 
tax provisions. In their totality, these incentives can be a helpful 
stimulus to get our Nation's energy policy back on track, and the 
Senate's proposal has had support in numerous industry sectors as well 
as among consumers. However, it is a rotten carrot that is dangling 
before us. This is yet another perverse, backdoor attempt to buy off 
Democratic votes by adding popular provisions to a Senate bill, while 
simultaneously preventing Democratic Senators from offering their own 
amendments on the floor and preventing them from protecting their 
interests during conferences.
  The majority is preventing Democrats from getting votes on other very 
important policy matters. There are many things that this Senate must 
address, including passing these energy tax incentives, but the 
majority needs to stop playing games with its Democratic colleagues. 
The Senate deserves better.
  The Senate finds itself handcuffed by the same authoritarian dictates 
from the Bush administration that have led to some of the fiercest 
partisan passions that this body has seen in decades. Gone is the 
traditional spirit of cooperation. Gone is the belief that the needs of 
the Nation stand above the ambitions of political party. It is a 
disheartening turn for this historic Chamber.
  Despite its campaign-driven rhetoric, this lipservice and corporate 
coddling have been the sum total of this administration's economic, 
health care, energy, and so many other policies. From the beginning, 
the administration's tax cuts have primarily benefited the wealthy. 
Hope for a bipartisan Medicare prescription drug benefit was high, but 
all that was left was a prescription for protecting the pharmaceutical 
industry and a drug benefit that is a sham for America's seniors. 
Progress on an energy strategy for the country began cooperatively, but 
quickly dissolved as Democrats were locked out of conference 
negotiations, their seats filled by special interest lobbyists.
  If the Republican majority wants to get something done in a closely 
divided Senate, it can, but it has to work with the other side of the 
aisle at all stages of the legislative process. That means respecting 
the committee process, respecting the rights of Senators to offer--and 
get votes on--amendments on the floor. It means truly including 
Democrats in conference deliberations, and defending the position of 
the Senate in conference negotiations--not buckling under pressure from 
the White House. I believe that, if the majority would do this, we 
would follow a better, more productive legislative path instead of 
voting on--and failing to invoke--cloture so often.
  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. This is a serious issue and it deserves close examination. But 
we haven't yet explored the issue in the Senate at all. Nor have we 
examined the issue of how malpractice cases may be affecting the 
practice of emergency medicine. No committee has held hearings or 
marked up a bill on these topics.
  In fact, no work has apparently been done behind the scenes since the 
Senate refused to invoke cloture on S. 2061. Instead, once again, an 
extreme and unbalanced proposal has been brought directly to the floor 
and Senators are expected to vote for it without any committee having 
looked into the facts or considered alternatives. That is not how the 
legislative process should work.
  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 only 6 weeks after a nearly 
identical bill failed to achieve the necessary vote, the majority shows 
that it is not serious about addressing the problem. It appears that 
what is going on here is a cynical exercise, designed only to fail and 
to provide fodder for political attacks. This issue deserves better and 
I hope that there will be some effort to address it in a serious, 
bipartisan manner.
  I will vote nay on cloture.
  Mr. KENNEDY. Mr. President, today's vote on S. 2207 is a test of the 
Senate's character. In the past, this body has had the courage to 
reject the simplistic and ineffective responses proposed by those who 
contend that the only way to help doctors is to further hurt seriously 
injured patients. Unfortunately, as we saw in the Patients' Bill of 
Rights debate, the Bush administration and congressional Republicans 
are again advocating a policy which will benefit neither doctors nor 
patients, only insurance companies. Caps on compensatory damages and 
other extreme tort reforms are not only unfair to the victims of 
malpractice, they do not result in a reduction of malpractice insurance 
premiums.
  Once more, we must stand resolute.
  We must not sacrifice the fundamental legal rights of seriously 
injured patients on the altar of insurance company profits. We must not 
surrender our most vulnerable citizens to the avarice of these 
companies.
  This bill contains the same arbitrary and unreasonable provisions 
which were decisively rejected by a bipartisan majority of the Senate 
twice within the past year. The only difference is that the bill 
rejected in February took basic rights away only from women and newborn 
babies who are the victims of negligent obstetric and gynecological 
care, while this bill includes victims of negligent emergency trauma 
care as well. Broadening the bill does not make it more acceptable. On 
the contrary, it only expands the unfairness to an additional category 
of malpractice victims.
  This legislation would deprive seriously injured patients of the 
right to recover fair compensation for their injuries by placing 
arbitrary caps on compensation for noneconomic loss in all obstetrical 
and gynecological cases and in all emergency and trauma care cases. 
These caps only serve to hurt those patients who have suffered the most 
severe, life-altering injuries and who have proven their cases in 
court.
  They are babies who suffered serious brain injuries at birth and will 
never be able to lead normal lives. They are the women who lost organs, 
reproductive capacity, and in some cases even years of life. They are 
the children who are permanently injured when emergency room doctors 
fail to provide proper medical treatment after an accident. These are 
life-altering conditions. It would be terribly wrong to take their 
rights away. The Republicans talk about deterring frivolous cases, but 
caps by their nature apply only to the most serious cases which have 
been proven in court. These badly injured patients are the last ones we 
should be depriving of fair compensation.
  A person with a severe injury is not made whole merely by receiving 
reimbursement for medical bills and lost wages. Noneconomic damages 
compensate victims for the very real, though not easily quantifiable, 
loss in quality of life that results from a serious, permanent injury. 
It is absurd to suggest that $250,000 is fair compensation for a child 
who is severely brain injured at birth and, as a result, can never 
participate in the normal activities of day to day living; or for a 
woman who lost her reproductive capacity because of an OB/GYN's 
malpractice; or for a patient who suffered a devastating heart attack 
because a negligent emergency room doctor ignored his severe chest 
pains and sent him home.
  This is not a better bill because it applies only to patients injured 
by malpractice in three medical categories.

[[Page 6739]]

That just makes it even more arbitrary.
  The entire premise of this bill is both false and offensive. Our 
Republican colleagues claim that women and their babies must sacrifice 
their fundamental legal rights in order to preserve access to OB/GYN 
care, and that those seeking care in a hospital emergency room must 
leave their rights at the door. The very idea is outrageous. For those 
locales--mostly in sparsely populated areas--where the availability of 
specialists is a problem, there are far less drastic ways to solve it.
  This bill is based on the false premise that the availability of OB/
GYN and trauma care physicians depends on the enactment of draconian 
tort reforms. If that were accurate, States that have already enacted 
damage caps would have a higher number of OB/GYNs providing care. 
However, there is in fact no correlation. States without caps actually 
have 28.4 OB/GYNs per 100,000 women, while States with caps have 25.2 
OB/GYNs per 100,000 women.
  Nor is there any correlation between access to emergency trauma care 
and whether a State has enacted restrictions on the compensation that 
malpractice victims can receive. In fact, 7 of the top 10 States 
identified in the Journal of the American Medical Association, March 
26, 2003, as having the highest number of level I and II trauma centers 
per million residents do not cap damages in malpractice cases. Five of 
the States with the best availability of trauma centers have actually 
been listed as malpractice ``crisis'' States by the AMA. That is worth 
repeating; 7 of the 10 States whose residents have the greatest access 
to emergency care do not limit damages. In contrast, four States that 
the AMA identifies as ``doing OK,'' having satisfactory tort laws, fail 
to have an adequate number of trauma centers to serve their residents.
  And that is only one of many fallacies in this bill. If the issue is 
truly access to OB/GYN and emergency care doctors, why has this bill 
been written to shield from accountability HMOs that deny needed 
medical care to a woman suffering serious complications with her 
pregnancy or to a child in need of emergency care after a serious 
accident, a pharmaceutical company that fails to warn of the dangerous 
side effects caused by its new drug, and a manufacturer that markets a 
medical device which can seriously injure the user. Who are the authors 
of this legislation really trying to protect?
  In reality, this legislation is designed to shield the entire health 
care industry from basic accountability for the care it provides to 
women and their infant children and to patients in need of emergency 
treatment. It is the first step toward broader legislation which would 
shield the industry from accountability in all health care decisions 
involving all patients. While those across the aisle like to talk about 
doctors, the real beneficiaries will be insurance companies and large 
health care corporations. This legislation would enrich them at the 
expense of the most seriously injured patients; whose entire lives have 
been devastated by medical neglect and corporate abuse.
  This legislation is attempting to use the sympathetic family doctor 
as a Trojan horse concealing an enormous array of special legal 
privileges for every corporation which makes a health care product, 
provides a health care service, or insures the payment of a medical 
bill. Every provision of this bill is carefully designed to take 
existing rights away from those who have been harmed by medical neglect 
and corporate greed.
  In addition to imposing caps, this legislation would place other 
major restrictions on seriously injured patients seeking to recover 
fair compensation. At every stage of the judicial process, it would 
change long-established judicial rules to disadvantage patients and 
shield defendants from the consequences of their actions.
  When will the Republican Party start worrying about injured patients 
and stop trying to shield big business from the consequences of its 
wrongdoing?
  If we were to arbitrarily restrict the rights of seriously injured 
patients as the sponsors of this legislation propose, what benefits 
would result? Certainly less accountability for health care providers 
will never improve the quality of health care. It will not even result 
in less costly care. The cost of medical malpractice premiums 
constitutes less than two-thirds of 1 percent, 0.66 percent, of the 
Nation's health care expenditures each year. Malpractice premiums are 
not the cause of the high rate of medical inflation.
  In this era of managed care and cost controls, it is ludicrous to 
suggest that the major problem facing American health care is 
``defensive medicine.'' The problem is not ``too much health care,'' it 
is ``too little'' quality health care.
  A CBO report released in January of this year rejected claims being 
made about the high cost of ``defensive medicine''. Their analysis 
``found no evidence that restrictions on tort liability reduce medical 
spending.'' There was ``no statistically significant difference in per 
capita health care spending between States with and without limits on 
malpractice torts.''
  The White House and other supporters of caps have argued that 
restricting an injured patient's right to recover fair compensation 
will reduce malpractice premiums. But there is scant evidence to 
support their claim. In fact, there is substantial evidence to refute 
it. In the past few years, there have been dramatic increases in the 
cost of medical malpractice insurance in States that already have 
damage caps and other restrictive tort reforms on the statute books, as 
well as in States that do not. No substantial increase in the number or 
size of malpractice judgments has suddenly occurred which would justify 
the enormous increase in premiums which many doctors are being forced 
to pay. The reason for sky-high premiums cannot be found in the 
courtroom.
  Caps are not only unfair to patients, they are also an ineffective 
way to control medical malpractice premiums. Comprehensive national 
studies show that medical malpractice premiums are not significantly 
lower on average in States that have enacted damage caps and other 
restrictions on patient rights than in States without these 
restrictions. Insurance companies are merely pocketing the dollars 
which patients no longer receive when ``tort reform'' is enacted.
  Let's look at the facts. Based on data from the Medical Liability 
Monitor on all 50 States, the average liability premium in 2003 for 
doctors practicing in States without caps on malpractice damages, 
$35,016, was less than the average premium for doctors practicing in 
States with caps, $40,381. There are many reasons why insurance rates 
vary substantially from State to State. This data demonstrates that it 
is not a State's tort reform laws which determine the rates. Caps do 
not make a significant difference in the malpractice premiums which 
doctors pay. This is borne out by a comparison of premium levels for a 
range of medical specialties.
  Focusing on premiums paid by OB/GYN physicians, the evidence is the 
same. Data from the Medical Liability Monitor shows that the average 
liability premium for OB/GYNs in 2003 was actually slightly higher in 
States with caps of damages, $63,278, than in States without caps, 
$59,224. It also showed that the rate of increase last year was higher 
in States with caps, 17.1 percent, than it was in States without caps, 
16.6 percent.
  This evidence clearly demonstrates that capping malpractice damages 
does not benefit the doctors it purports to help. Their rates remain 
virtually the same. It only helps the insurance companies earn even 
bigger profits. As BusinessWeek magazine concluded after reviewing the 
data, ``the statistical case for caps is flimsy,'' March 3, 2003 issue.
  If a Federal cap on noneconomic compensatory damages were to pass, it 
would sacrifice fair compensation for injured patients in a vain 
attempt to reduce medical malpractice premiums. Doctors will not get 
the relief they are seeking. Only the insurance companies, which 
created the recent market instability, will benefit.

[[Page 6740]]

  Insurance industry practices are responsible for the sudden dramatic 
premium increases which have occurred in some States in the past few 
years. The explanation for these premium spikes can be found not in 
legislative halls or in courtrooms, but in the boardrooms of the 
insurance companies themselves.
  Insurers make much of their money from investment income. Interest 
earned on premium dollars is particularly important in medical 
malpractice insurance because there is a much longer period of time 
between receipt of the premium and payment of the claim than in most 
lines of casualty insurance. The industry creates a ``malpractice 
crisis'' whenever its investments do poorly. The combination of a sharp 
decline in the equity markets and record low interest rates in recent 
years is the reason for the sharp increase in medical malpractice 
insurance premiums. What we are witnessing is not new. The industry has 
engaged in this pattern of behavior repeatedly over the last 30 years.
  Last year, Weiss Ratings, Inc., a nationally recognized financial 
analyst conducted an in-depth examination of the impact of capping 
damages in medical malpractice cases. Their conclusions sharply 
contradict the assumptions on which this legislation is based. Weiss 
found that capping damages does reduce the amount of money that 
malpractice insurance companies pay out to injured patients. However, 
those savings are not passed on to doctors in lower premiums.
  Between 1991 and 2002, the Weiss analysis shows that premiums rose by 
substantially more in the States with damage caps than in the States 
without caps. The 12-year increase in the annual malpractice premium 
was 48.2 percent in the States that had caps, and only 35.9 percent in 
the States that had no caps. In the words of the report: ``On average, 
doctors in States with caps actually suffered a significantly larger 
increase than doctors in States without caps . . . In short, the 
results clearly invalidate the expectations of cap proponents.''
  Doctors, especially those in high risk specialties, whose malpractice 
premiums have increased dramatically over the past few years do deserve 
premium relief. That relief will only come as the result of tougher 
regulation of the insurance industry. When insurance companies lose 
money on their investments, they should not be able to recover those 
losses from the doctors they insure. Unfortunately, that is what is 
happening now.
  Doctors and patients are both victims of the insurance industry. 
Excess profits from the boom years should be used to keep premiums 
stable when investment earnings drop. However, the insurance industry 
will never do that voluntarily. Only by recognizing the real problem 
can we begin to structure an effective solution that will bring an end 
to unreasonably high medical malpractice premiums.
  There are specific changes in the law which should be made to address 
the abusive manner in which medical malpractice insurers operate. The 
first and most important would be to subject the insurance industry to 
the Nation's antitrust laws. It is the only major industry in America 
where corporations are free to conspire to fix prices, withhold and 
restrict coverage, and engage in a myriad of other anticompetitive 
actions. A medical malpractice ``crisis'' does not just happen. It is 
the result of insurance industry schemes to raise premiums and to 
increase profits by forcing antipatient changes in the tort law. I have 
introduced, with Senator Leahy, legislation which will at long last 
require the insurance industry to abide by the same rules of fair 
competition as other businesses. Secondly, we need stronger insurance 
regulations which will require malpractice insurers to set aside a 
portion of the windfall profits they earn from their investment of 
premium dollars in the boom years to cover part of the cost of paying 
claims in lean years. This would smooth out the extremes in the 
insurance cycle which have been so brutal for doctors. Thirdly, to 
address the immediate crisis that some doctors in high risk specialties 
are currently facing, we should provide temporary premium relief. This 
is particularly important for doctors who are providing care to 
underserved populations in rural and inner city areas.
  Unlike the harsh and ineffective proposals in S. 2207, these are real 
solutions which will help physicians without further harming seriously 
injured patients. Unfortunately, the Republican leadership continues to 
protect their allies in the insurance industry and refuses to consider 
real solutions to the malpractice premium crisis.
  This legislation, S. 2207, is not a serious attempt to address a 
significant problem being faced by physicians in some States. It is the 
product of a party caucus rather than the bipartisan deliberations of a 
Senate committee. It was designed to score political points, not to 
achieve the bipartisan consensus which is needed to enact major 
legislation. For that reason, it does not deserve to be taken seriously 
by the Senate.
  Mr. McCAIN. Mr. President, when we first began the Senate debate on 
S. 1637 in March, the intended purpose of the measure was to resolve 
appropriately the controversy between the United States and the 
European Union over the extraterritorial income, ETI, exemption tax 
benefit for exports. Almost all of us recognize the critical need to 
pass legislation to bring the United States back into compliance with 
World Trade Organization, WTO, agreements and stop the burdensome 
tariffs now imposed on our manufacturers. Unfortunately, achieving the 
legislation's worthy purpose is in jeopardy due to a host of special 
interest tax provision add-ons. I do not support these latest add-ons 
and, as such, must vote against today's cloture vote.
  When S. 1637 was presented to the Senate, it was a 378-page bill. 
Although only one roll call vote has occurred on an amendment during 
the floor consideration, the bill had grown to some 527 pages by the 
last cloture vote on March 22. I reluctantly voted for cloture, voicing 
my strong concerns about the direction the bill was going at the time. 
But instead of reigning in the special interest add-ons, they are only 
growing further. The bill has now grown to a 929-page Easter basket of 
goodies, but with almost no debate or votes on its provisions, 
including the latest addition of $13 billion in energy-related tax 
breaks.
  I recognize the strong interest of the chairman of the Energy 
Committee and others to pass an energy bill. I wish that I could 
support the bill that the committee has developed, but in its current 
form I cannot. But I can assure the proponents of the energy 
legislation that to now shift $13 billion in costs from their bill to 
the JOBS bill is not the way to gain support for an energy bill. 
Instead, they need to develop an energy bill that is more evenly 
balanced between stimulating the supply of conventional fuels and 
promoting alternative fuels and energy efficiency.
  If the Senate is to consider an energy tax incentive bill or an 
energy authorizing bill, we should be following regular order, and 
bringing legislation to the floor and debating in its own right. 
Instead, we are being asked to simply accept a 362-page energy bill 
add-on without debate or further amendments.
  With our limited legislative time during this election year, the 
Senate would serve the American public far better if it stayed focused 
on accomplishing the intended purpose of legislating. Unfortunately, 
the JOBS bill, which is a much needed bill, is being dragged down with 
the unnecessary weight of billions of dollars in wasteful subsidies, 
tax breaks, and special exemptions for special interest industries. 
With the Nation facing a half-trillion dollar deficit, now is not the 
time for Congress to be enacting new tax credits and carving out sweet 
deals for special interests.
  Mr. FRIST. Mr. President, today, we will be voting on a cloture 
motion to allow the Senate to proceed to debate S. 2207, the Pregnancy 
and Trauma Care Access Protection Act of 2004. I strongly urge my 
colleagues to vote for the motion to proceed.
  It should be clear to all those following this debate that our 
medical litigation system is failing the American people. It is failing 
our communities, our hospitals, our doctors, our

[[Page 6741]]

families and, most importantly, our patients. Unfortunately, this 
system hurts our most vulnerable patients the most--those needing help 
from highly trained medical specialists like neurosurgeons and 
obstetricians. 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 Members have problems with certain parts of the bill that is fine. 
Let's move to the bill, offer amendments, and fully debate this needed 
reform.
  But if action is delayed, we know what will happen: patients will 
suffer, women will suffer and babies will suffer. Those seeking care 
from emergency rooms and trauma centers will suffer. OB/GYNs will 
continue to flee their practices and drop obstetrical services, and 
more doctors will refuse to perform vitally needed emergency services.
  I remind my colleagues that our current litigation system does more 
than simply threaten access to care. 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 
unneeded 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 taxpayers 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. 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 Pregnancy and Trauma Care Access Protection Act. I thank my 
colleague Senator Gregg, who has skillfully led this debate, and I 
thank Senator Ensign, a leading proponent of reform, who has seen the 
current crisis in his own State of Nevada.
  This legislation will protect access to care for our most vulnerable 
citizens and ensure that those who are negligently injured receive fair 
and just compensation. Again, I encourage my colleagues to move this 
legislation forward. We cannot afford further delay.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that I be 
recognized to make a statement and, upon the conclusion of my 
statement, the Senate recess until 2:15 as provided under the previous 
order.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                FSC/ETI

  Mr. GRASSLEY. Mr. President, I am extremely disappointed that we have 
to be here today debating the FSC/ETI bill. The fact is, with America's 
economic health at risk, the bipartisan JOBS bill should have been 
debated and voted out of this body last month. Instead, attempts to 
move this jobs in manufacturing bill has been stymied. As a result, 
American manufacturing is not only being deprived of a competitive 
boost that it deserves at a time of no job creation in manufacturing 
but, in addition to that, U.S. exporters are stuck with a 6-percent 
European tax on our products going there.
  This situation has festered for much too long. It has been several 
years since the World Trade Organization has ruled that the FSC/ETI 
regime did not meet our World Trade Organization obligations that this 
Senate and the other body agreed to a long time ago. Since then, we 
have known that. It is a fact. We have all known that unless we changed 
our current tax system, tariffs against our exports were looming.
  To try to avoid these sanctions, Senator Baucus and I came together 
over a year ago and formed a bipartisan, bicameral working group to 
find a real, permanent solution to this problem.
  The result is bipartisan. Remember that nothing gets done in the 
Senate that is not bipartisan. We have a jobs in manufacturing act 
before the Senate, and we will be voting on that today. This bill was 
passed out of my committee by a vote of 19 to 2. That means all 
Democrats voted for it. It provided a real and permanent solution to 
our FSC/ETI problems in a way which complies with our WTO obligations.
  The bipartisan jobs in manufacturing act helps America's 
manufacturing sector. It helps us compete by giving an across-the-board 
3-percentage point tax cut to all companies, large or small, that 
manufacture in the United States.
  At a time when manufacturing is flat, this 3-percent tax cut can make 
a real difference to a company's bottom line perhaps bringing up enough 
capital and creating enough manufacturing growth to enable it or any 
company to hire in the manufacturing sector.
  That is something every Senator would like to see. But because of 
political games and dilatory tactics by some in the Senate, this relief 
is not forthcoming.
  I want Americans to understand that Senators on my side of the aisle 
are ready, willing, and able to provide a real shot in the arm to 
America's manufacturing sector. But after working so long in a 
bipartisan way, we are being blocked. We are blocked from providing the 
relief that American manufacturing deserves and needs.
  In effect, this bill and the American manufacturing sector are being 
held hostage to Democratic demands to load this bipartisan legislation 
with a bunch of unrelated nongermane amendments. While some of these 
amendments are legitimate, others amount to nothing more than a wish 
list of political message amendments that have nothing to do with this 
very major piece of legislation. I, for one, am tired of watching us 
bide our time contemplating a wish list. American manufacturing needs 
solutions. It does not need a political wish list.
  We have a good bipartisan bill before the Senate, a package that 
works for America's workers. But our plea for progress is met with 
nothing but demands for including one more item on some political wish 
list. You would think adults would make up their minds about what they 
want and that would be it.
  It would be one thing if a political wish list did no harm, if it 
really didn't matter, or if the JOBS bill moved or not. But for 
manufacturing it does matter. Delay deprives American manufacturing of 
a much needed economic boost. Delay also inflicts real economic harm on 
innocent workers across the country.
  The World Trade Organization has authorized the European Union to 
impose as much as $4 billion in tariffs in retaliation for our failure 
to bring our tax laws into compliance with international trade 
agreements that this body has already accepted--and accepted years ago.
  Last month, on March 1, the European Union began implementing these 
sanctions by imposing an additional 5-percent tax on selected U.S. 
exports. This 5-percent Euro tax automatically increases by 1 percent 
for each month in which the United States of America remains out of 
compliance. Thus, when Members voted against stopping debate last 
month, the last time this bill was before this body, they contributed 
to a 20-percent increase in these tariffs because that additional 1 
percent went into effect on April 1. Because of delay, then we have a 
6-percent sales tax on our exports to Europe, making a lot of our 
businesses uncompetitive.
  As you can see from this chart, these sanctions will continue to 
climb unless we act and act fast. In May, they rise another 1-
percentage point to 7 percent and continue increasing until they reach 
a maximum of 17 percent in March of 2005. After that, then who knows 
what is going to happen. But by then we will have a lot of layoffs and 
people will wake up to the fact that harm is being done.
  The European Union is not bound to cap retaliation at 17 percent. 
That is why I said: Who knows? In fact, they are scheduled to review 
the effectiveness of these retaliatory taxes at the

[[Page 6742]]

end of 1 year. If the Europeans conclude that we are not in compliance, 
retaliation can escalate even further to a maximum of $4 billion a 
year.
  If this sounds one sided, America wins more disputes in the World 
Trade Organization than we lose. We have won some major disputes 
against Europe. One time we won one about American beef being kept out 
of Europe. Europe still doesn't like to get some American beef. So we 
have imposed a tax on European exports coming into our country because 
that is the legal way of handling these disputes after it has been 
decided. I use that as an example. Europe has learned a lesson from the 
United States and they are doing to us what we have done to them. Why? 
Because in one case Europe did not want to abide by a decision, and in 
another case, we, up to now, have not abided by a decision. That is why 
we have the tax. It is quite obvious in most cases countries abide by 
these decisions. If they did not abide by these decisions, we would 
have chaos in international trade. We do not.
  I make clear to the Members of this body: The effect of voting 
against stopping debate last month contributed strongly to raising 
tariffs on our exports by 2 percent. If cloture is not invoked this 
week, it is certain sanctions will escalate another percentage point, 
rising an overall level of 7 percent on selected U.S. exports. The core 
legislation should be very clear: A vote against stopping debate is a 
vote for higher taxes on our exports.
  Which exporters will be hurt? All of them. No, not all of them, 
because the European Union was very careful in drawing up the sanctions 
list. In many cases, they chose to impose sanctions on U.S. exports 
that would most significantly feel the pain of the higher tax tariffs.
  They are smart. Thus, highly competitive products with high profit 
margins are likely to find themselves on the list.
  A press release from the American Forest and Paper Association dated 
March 2 of this year says this about European Union tariffs on wood 
product exports:

       This is a devastating development for an industry that has 
     already closed more than 220 mills and laid off 120,000 
     workers since 1997.
       Our industry works on such tight profit margins that even a 
     5 percent tariff will likely price many U.S. wood and paper 
     products out of our vital European markets. To have this 
     happen just as United States wood and paper products are 
     beginning to recover from a decade-long stump does 
     irreparable harm to our industry.

  The European Union has chosen products they could get from other 
countries, hoping that the higher tariffs on U.S. exports will price 
our products out of the European market, to be replaced by similar 
products from other foreign competitors. It is important for Members of 
the Senate to understand the effect of pricing U.S. exports out of the 
European market is not just temporary. Longstanding business 
relationships can be permanently disrupted as European buyers scramble 
to replace cost-prohibited U.S. products. Even if our price may go 
down, those relationships that are made because of this uncompetitive 
atmosphere for American exporters may go on and we never gain back that 
market. Once a replacement from another country is found, there is no 
guarantee the European buyer will ever buy from the U.S. producer 
again. In the end, the lost European export market can be lost forever. 
If the Senate votes down this motion to stop debate this month, the 
cancer of sanctions will not only continue, it will spread.
  On May 1 of this year the European Union will take in 10 more member 
countries. These countries will be bound by the same import-export 
regime as France and other European Union countries. Thus U.S. exports 
to those 10 countries will also face higher tariffs as they try to 
compete in these markets.
  Now we will look at another chart that shows the list of countries 
that will be become part of the European Union starting May 1, 2004: 
Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, 
Poland, Slovakia, Slovenia. I hope Senators who vote against stopping 
debate today appreciate they are voting not only to raise the Euro tax 
on sensitive U.S. exports but are also voting to have that tax applied 
to an even broader array of countries.
  Some people might argue these sanctions only hurt big companies. Do 
not be fooled. They are big, people might argue, and they can absorb a 
hit of higher tariffs. The fact is, approximately 90 percent of U.S. 
exporters in 2001 were small businesses with 100 employees or less. 
These small exporters can ill afford the sting of sanctions on their 
bottom line. Products impacted include jewelry, horses, dairy, fruit 
and vegetables, toys and games, glass and glassware, animal feed, 
leather goods and handbags, textile products, carpets, footwear, soap 
and candles, wood products, and electric machinery. That is just a 
small list of 500 different products being hit. The American people are 
starting to take notice.
  I read in part from a letter I received from the Carpet Rug Institute 
headquartered in Dalton, GA, stating:

       The United States carpet industry produces 45 percent of 
     the world's carpet and is a $12 billion per year presence at 
     the mill.
       The carpet industry is extremely competitive, both 
     domestically and worldwide, with profit margins cut razor 
     thin.
       The potential of an increased duty in the form of a 
     punitive sanction may make the export of carpet and rug 
     products by any United States manufacturer in the European 
     Union market an economic impossibility. For the sake of the 
     collection of an excess tariff an entire industry may be made 
     to suffer.

  And we are hearing:

       Voices from across the country are asking relief from the 
     escalating Euro tax on our exports.

  I will take a look at another letter signed by over 80 businesses and 
trade associations. These organizations that signed the letter want to 
emphasize the urgency of resolving the FSC/ETI export tax issue as soon 
as possible. Quick action on legislation is necessary to both comply 
with our WTO obligations and avoid or minimize retaliation against U.S. 
products.

     . . . the European Union has increased the retaliatory 
     tariffs from 5 to 6 percent on as much as $4 billion per year 
     of American products.
       These retaliatory tariffs are hurting the U.S. exports to 
     Europe at a time when they are just beginning to rebound in 
     the global economy and showing signs of renewed growth. 
     Moreover, the tariffs negatively impact American workers.

  The letter continues:

       We urge the Senate and House to pass FSC/ETI legislation 
     immediately and proceed to conference as soon as possible 
     thereafter.
       Thank you . . . for doing your part to send FSC/ETI bill to 
     the President's desk without delay, thus minimizing the 
     economically devastating trade sanctions on U.S. products and 
     its impact on American workers who produce them.

  These organizations span the entire Nation. This is not regional. 
Almost every State is going to be impacted by this vote this afternoon.
  So let's go to the Northeast: the Virginia Forestry Association, the 
Associated Industries of Massachusetts, the Coalition of New England 
Companies for Trade, and the Greater Providence Chamber of Commerce.
  From our part of the country, the Upper Midwest--the Presiding 
Officer is from Minnesota; I am from Iowa--we have the Detroit Regional 
Chamber of Commerce, the Minnesota Timber Producers Association, the 
Minnesota Agri-Growth Council, the Missouri Forest Products 
Association, and the Wisconsin Manufacturers and Commerce.
  In the Pacific Northwest, we have the Pacific Coast Council of Custom 
Brokers and Freight Forwarders and the Softwood Export Council in the 
Pacific Northwest.
  From the West, we have the Utah Manufacturers Association, the 
California Manufacturers and Technology Association, and the California 
Chamber of Commerce.
  From the Plains States and the South, we have the Arkansas Forestry 
Association, the Louisiana Forestry Association, the Mississippi 
Forestry Association, and the Texas Forestry Association.
  From the Southeast, we have the Alabama Forestry Association, the

[[Page 6743]]

Puerto Rico Manufacturers Association, the Tennessee Chamber of 
Commerce and Industry, and the North Carolina Forestry Association.
  So as you can see, the entire country is impacted by this European 
tax on our exports to that part of the world. Some of the nationally 
impacted associations include the Agriculture Retailers Association, 
the American Architectural Manufacturers Association, the American 
Cotton Shippers Council, the American Farm Bureau Federation, the 
American Iron and Steel Institute, the American Peanut Council, the 
American Soybean Association, the American Textile Manufacturers 
Institute, the Manufacturing Jewelers and Suppliers of America, the 
National Association of Manufacturers, the National Corn Growers 
Association, and the National Cotton Council. And that is just a 
partial list.
  What communication to Members of Congress is all about is businesses 
crying out for relief--not for the delay that we have already had for 1 
month.
  Let's be clear about what is at stake. American jobs are at stake 
because American competitiveness is at stake.
  A vote against stopping debate is a vote against tax relief for 
America's beleaguered manufacturing sector--tax relief that goes beyond 
nullifying this European tax.
  A vote against stopping debate is a vote to prolong the pain across 
America. A vote against stopping debate is a vote to increase the 
European tax on American exporters yet more than the 6 percent already 
there. A vote against stopping debate is a vote to deprive America's 
small exporters--because 90 percent of our exporters are small 
businesses of 100 employees or less--continued access to the European 
market, and access they may never regain.
  If my colleagues vote against stopping debate, they might as well be 
telling American manufacturing that the United States is closed for 
business; that if you want access to the European export markets, you 
might as well go overseas and do your business because Members of this 
Congress have refused to give these manufacturers the tools they need 
to compete.
  There is an answer. Stop--stop playing political games; stop pushing 
political wish lists; stop jeopardizing economic recovery. Instead, 
start supporting the ending of debate; start bringing this bill to 
finality; support stopping debate and start enhancing the economic 
recovery that is just around the corner in America's manufacturing 
sector if we do not snuff it out; support stopping debate and start the 
process that eliminates the European tax on our exports.
  The choice is clear: Vote no, and you might make a few political 
points but I think just for a short period of time. As this Euro-tax 
goes up, people are laid off and you lose political points. Vote yes to 
stop debate and you are guaranteed to get economic progress.
  So let's put aside our political games. Stop this debate. Move to 
finality. Consider legitimate amendments. That is what this place is 
all about--legitimate amendments, not just making political comment.
  I summarize this way: This is like moving the goalposts. We have 
heard a lot from the Democratic leadership which claims they support 
this bipartisan bill. That is what we are hearing. I know that is what 
they are telling their constituents as well. I am afraid the actions of 
the Democratic leadership speak louder than their words. My sense is 
that there is a political priority to deny President Bush an 
opportunity to sign a bipartisan bill either this summer or this fall. 
It seems that the objective is to prevent that Rose Garden signing 
ceremony from occurring.
  Of course, the victims of this strategy happen to be those companies 
and those workers who are hit by this Euro-tax as it ratchets up. I 
hope I am wrong. But the record gives me pause. I would hope that those 
on the other side would put the interests of firms and workers in their 
States above that of partisan Presidential campaign strategy. If you 
look at the record, you will see dramatic movements in terms of the 
demands of people on the other side of the aisle to promote their 
political message amendments, most often nongermane.
  This chart draws from a favorite activity that we have in the 
Midwest, for example, every time Iowa plays Minnesota, and I am 
talking, obviously, about football. This jobs in manufacturing bill is 
near the Senate goal line. Unfortunately, it seems politics is driving 
the other side to move the goalposts.
  When we came into session in January, Senator Frist was criticized by 
the Democratic leadership for not moving right away this very bill, the 
jobs in manufacturing bill. At that time, the goalpost was clear--just 
5 yards away. Then, after we were finished with the highway bill and a 
couple other bills, Senator Frist attempted to go to this jobs in 
manufacturing bill.
  Much to my surprise, we were ambushed by the leadership of the other 
side with unrelated amendments. I thought I had an understanding with 
the floor manager we were going to do amendments first that were 
related to the bill and then move to other amendments. That agreement 
was not carried out. That event caught me off guard. So a second 
goalpost appeared. It was the overtime amendment of my colleague from 
Iowa.
  Now, it did not matter that we had voted on it previously. It did not 
matter that the amendment dealt with a proposed--not final but a 
proposed--Department of Labor regulation. None of that seemed to 
matter. That amendment was, and is still, a show-stopper to this 
bipartisan bill. So we are at the second goalpost, as it has been 
moved.
  The demand of the leadership of the other side keeps changing. We 
were talking about just a single-digit list of amendments and, for the 
most part, hopefully germane amendments. We are not talking about that 
anymore. Now, since it looks like an overtime pay vote may be in the 
picture, there is a goalpost yet further away.
  For the first time we are hearing of other amendments--not Finance 
Committee jurisdiction amendments--such as an increase in the minimum 
wage, that are new showstoppers.
  You can't finish this bill, we are told, even though we are told the 
substance is great. Nobody seems to disagree on the substance of this. 
So why can't we get a bill to the President? Even though we don't 
disagree on the substance, there is still a new goalpost. Heaven help 
us how all that turns out.
  There is a final goalpost way out there; that is, getting to 
conference. We may move through all the goalposts, but then we may be 
blocked on whether we get to conference. I hope I am proven wrong in a 
few minutes as we vote on this measure.
  If we can't get cooperation from the other side, we have a couple 
alternatives: One, to go on with other business; two, to look at 
reconciliation in late spring. I don't want to go with either of those 
options because we can finish this bill now. There is always a time 
when the Senate has goodwill between the two parties represented. That 
goodwill hopefully will surface just as cream surfaces on milk.
  Now it is time to get the job done. I hope we can pass this FSC/ETI 
legislation. It is bipartisan. That is the only way you get things done 
in the Senate. Consequently, because it is bipartisan, we ought to get 
it done. And because it is bipartisan, it deserves better treatment 
than it has received thus far.
  I yield the floor.

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