[Congressional Record (Bound Edition), Volume 150 (2004), Part 7]
[House]
[Pages 9269-9291]
[From the U.S. Government Publishing Office, www.gpo.gov]




HELP EFFICIENT, ACCESSIBLE, LOW-COST, TIMELY HEALTHCARE (HEALTH) ACT OF 
                                  2004

  Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 638, I 
call up the bill (H.R. 4280) to improve patient access to health care 
services and provide improved medical care by reducing the excessive 
burden the liability system places on the health care delivery system, 
and ask for its immediate consideration.
  The Clerk read the title of the bill.

[[Page 9270]]

  The text of H.R. 4280 is as follows:

                               H.R. 4280

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Help Efficient, Accessible, 
     Low-cost, Timely Healthcare (HEALTH) Act of 2004''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--
       (1) Effect on health care access and costs.--Congress finds 
     that our current civil justice system is adversely affecting 
     patient access to health care services, better patient care, 
     and cost-efficient health care, in that the health care 
     liability system is a costly and ineffective mechanism for 
     resolving claims of health care liability and compensating 
     injured patients, and is a deterrent to the sharing of 
     information among health care professionals which impedes 
     efforts to improve patient safety and quality of care.
       (2) Effect on interstate commerce.--Congress finds that the 
     health care and insurance industries are industries affecting 
     interstate commerce and the health care liability litigation 
     systems existing throughout the United States are activities 
     that affect interstate commerce by contributing to the high 
     costs of health care and premiums for health care liability 
     insurance purchased by health care system providers.
       (3) Effect on federal spending.--Congress finds that the 
     health care liability litigation systems existing throughout 
     the United States have a significant effect on the amount, 
     distribution, and use of Federal funds because of--
       (A) the large number of individuals who receive health care 
     benefits under programs operated or financed by the Federal 
     Government;
       (B) the large number of individuals who benefit because of 
     the exclusion from Federal taxes of the amounts spent to 
     provide them with health insurance benefits; and
       (C) the large number of health care providers who provide 
     items or services for which the Federal Government makes 
     payments.
       (b) Purpose.--It is the purpose of this Act to implement 
     reasonable, comprehensive, and effective health care 
     liability reforms designed to--
       (1) improve the availability of health care services in 
     cases in which health care liability actions have been shown 
     to be a factor in the decreased availability of services;
       (2) reduce the incidence of ``defensive medicine'' and 
     lower the cost of health care liability insurance, all of 
     which contribute to the escalation of health care costs;
       (3) ensure that persons with meritorious health care injury 
     claims receive fair and adequate compensation, including 
     reasonable noneconomic damages;
       (4) improve the fairness and cost-effectiveness of our 
     current health care liability system to resolve disputes 
     over, and provide compensation for, health care liability by 
     reducing uncertainty in the amount of compensation provided 
     to injured individuals; and
       (5) provide an increased sharing of information in the 
     health care system which will reduce unintended injury and 
     improve patient care.

     SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

       The time for the commencement of a health care lawsuit 
     shall be 3 years after the date of manifestation of injury or 
     1 year after the claimant discovers, or through the use of 
     reasonable diligence should have discovered, the injury, 
     whichever occurs first. In no event shall the time for 
     commencement of a health care lawsuit exceed 3 years after 
     the date of manifestation of injury unless tolled for any of 
     the following--
       (1) upon proof of fraud;
       (2) intentional concealment; or
       (3) the presence of a foreign body, which has no 
     therapeutic or diagnostic purpose or effect, in the person of 
     the injured person.

     Actions by a minor shall be commenced within 3 years from the 
     date of the alleged manifestation of injury except that 
     actions by a minor under the full age of 6 years shall be 
     commenced within 3 years of manifestation of injury or prior 
     to the minor's 8th birthday, whichever provides a longer 
     period. Such time limitation shall be tolled for minors for 
     any period during which a parent or guardian and a health 
     care provider or health care organization have committed 
     fraud or collusion in the failure to bring an action on 
     behalf of the injured minor.

     SEC. 4. COMPENSATING PATIENT INJURY.

       (a) Unlimited Amount of Damages for Actual Economic Losses 
     in Health Care Lawsuits.--In any health care lawsuit, nothing 
     in this Act shall limit a claimant's recovery of the full 
     amount of the available economic damages, notwithstanding the 
     limitation in subsection (b).
       (b) Additional Noneconomic Damages.--In any health care 
     lawsuit, the amount of noneconomic damages, if available, may 
     be as much as $250,000, regardless of the number of parties 
     against whom the action is brought or the number of separate 
     claims or actions brought with respect to the same injury.
       (c) No Discount of Award for Noneconomic Damages.--For 
     purposes of applying the limitation in subsection (b), future 
     noneconomic damages shall not be discounted to present value. 
     The jury shall not be informed about the maximum award for 
     noneconomic damages. An award for noneconomic damages in 
     excess of $250,000 shall be reduced either before the entry 
     of judgment, or by amendment of the judgment after entry of 
     judgment, and such reduction shall be made before accounting 
     for any other reduction in damages required by law. If 
     separate awards are rendered for past and future noneconomic 
     damages and the combined awards exceed $250,000, the future 
     noneconomic damages shall be reduced first.
       (d) Fair Share Rule.--In any health care lawsuit, each 
     party shall be liable for that party's several share of any 
     damages only and not for the share of any other person. Each 
     party shall be liable only for the amount of damages 
     allocated to such party in direct proportion to such party's 
     percentage of responsibility. Whenever a judgment of 
     liability is rendered as to any party, a separate judgment 
     shall be rendered against each such party for the amount 
     allocated to such party. For purposes of this section, the 
     trier of fact shall determine the proportion of 
     responsibility of each party for the claimant's harm.

     SEC. 5. MAXIMIZING PATIENT RECOVERY.

       (a) Court Supervision of Share of Damages Actually Paid to 
     Claimants.--In any health care lawsuit, the court shall 
     supervise the arrangements for payment of damages to protect 
     against conflicts of interest that may have the effect of 
     reducing the amount of damages awarded that are actually paid 
     to claimants. In particular, in any health care lawsuit in 
     which the attorney for a party claims a financial stake in 
     the outcome by virtue of a contingent fee, the court shall 
     have the power to restrict the payment of a claimant's damage 
     recovery to such attorney, and to redirect such damages to 
     the claimant based upon the interests of justice and 
     principles of equity. In no event shall the total of all 
     contingent fees for representing all claimants in a health 
     care lawsuit exceed the following limits:
       (1) 40 percent of the first $50,000 recovered by the 
     claimant(s).
       (2) 33\1/3\ percent of the next $50,000 recovered by the 
     claimant(s).
       (3) 25 percent of the next $500,000 recovered by the 
     claimant(s).
       (4) 15 percent of any amount by which the recovery by the 
     claimant(s) is in excess of $600,000.
       (b) Applicability.--The limitations in this section shall 
     apply whether the recovery is by judgment, settlement, 
     mediation, arbitration, or any other form of alternative 
     dispute resolution. In a health care lawsuit involving a 
     minor or incompetent person, a court retains the authority to 
     authorize or approve a fee that is less than the maximum 
     permitted under this section. The requirement for court 
     supervision in the first two sentences of subsection (a) 
     applies only in civil actions.

     SEC. 6. ADDITIONAL HEALTH BENEFITS.

       In any health care lawsuit involving injury or wrongful 
     death, any party may introduce evidence of collateral source 
     benefits. If a party elects to introduce such evidence, any 
     opposing party may introduce evidence of any amount paid or 
     contributed or reasonably likely to be paid or contributed in 
     the future by or on behalf of the opposing party to secure 
     the right to such collateral source benefits. No provider of 
     collateral source benefits shall recover any amount against 
     the claimant or receive any lien or credit against the 
     claimant's recovery or be equitably or legally subrogated to 
     the right of the claimant in a health care lawsuit involving 
     injury or wrongful death. This section shall apply to any 
     health care lawsuit that is settled as well as a health care 
     lawsuit that is resolved by a fact finder. This section shall 
     not apply to section 1862(b) (42 U.S.C. 1395y(b)) or section 
     1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social Security 
     Act.

     SEC. 7. PUNITIVE DAMAGES.

       (a) In General.--Punitive damages may, if otherwise 
     permitted by applicable State or Federal law, be awarded 
     against any person in a health care lawsuit only if it is 
     proven by clear and convincing evidence that such person 
     acted with malicious intent to injure the claimant, or that 
     such person deliberately failed to avoid unnecessary injury 
     that such person knew the claimant was substantially certain 
     to suffer. In any health care lawsuit where no judgment for 
     compensatory damages is rendered against such person, no 
     punitive damages may be awarded with respect to the claim in 
     such lawsuit. No demand for punitive damages shall be 
     included in a health care lawsuit as initially filed. A court 
     may allow a claimant to file an amended pleading for punitive 
     damages only upon a motion by the claimant and after a 
     finding by the court, upon review of supporting and opposing 
     affidavits or after a hearing, after weighing the evidence, 
     that the claimant has established by a substantial 
     probability that the claimant will prevail on the claim for 
     punitive damages. At the request of any party in a health 
     care lawsuit, the trier of fact shall consider in a separate 
     proceeding--
       (1) whether punitive damages are to be awarded and the 
     amount of such award; and
       (2) the amount of punitive damages following a 
     determination of punitive liability.

[[Page 9271]]

     If a separate proceeding is requested, evidence relevant only 
     to the claim for punitive damages, as determined by 
     applicable State law, shall be inadmissible in any proceeding 
     to determine whether compensatory damages are to be awarded.
       (b) Determining Amount of Punitive Damages.--
       (1) Factors considered.--In determining the amount of 
     punitive damages, if awarded, in a health care lawsuit, the 
     trier of fact shall consider only the following--
       (A) the severity of the harm caused by the conduct of such 
     party;
       (B) the duration of the conduct or any concealment of it by 
     such party;
       (C) the profitability of the conduct to such party;
       (D) the number of products sold or medical procedures 
     rendered for compensation, as the case may be, by such party, 
     of the kind causing the harm complained of by the claimant;
       (E) any criminal penalties imposed on such party, as a 
     result of the conduct complained of by the claimant; and
       (F) the amount of any civil fines assessed against such 
     party as a result of the conduct complained of by the 
     claimant.
       (2) Maximum award.--The amount of punitive damages, if 
     awarded, in a health care lawsuit may be as much as $250,000 
     or as much as two times the amount of economic damages 
     awarded, whichever is greater. The jury shall not be informed 
     of this limitation.
       (c) No Punitive Damages for Products That Comply With FDA 
     Standards.--
       (1) In general.--
       (A) No punitive damages may be awarded against the 
     manufacturer or distributor of a medical product, or a 
     supplier of any component or raw material of such medical 
     product, based on a claim that such product caused the 
     claimant's harm where--
       (i)(I) such medical product was subject to premarket 
     approval, clearance, or licensure by the Food and Drug 
     Administration with respect to the safety of the formulation 
     or performance of the aspect of such medical product which 
     caused the claimant's harm or the adequacy of the packaging 
     or labeling of such medical product; and
       (II) such medical product was so approved, cleared, or 
     licensed; or
       (ii) such medical product is generally recognized among 
     qualified experts as safe and effective pursuant to 
     conditions established by the Food and Drug Administration 
     and applicable Food and Drug Administration regulations, 
     including without limitation those related to packaging and 
     labeling, unless the Food and Drug Administration has 
     determined that such medical product was not manufactured or 
     distributed in substantial compliance with applicable Food 
     and Drug Administration statutes and regulations.
       (B) Rule of construction.--Subparagraph (A) may not be 
     construed as establishing the obligation of the Food and Drug 
     Administration to demonstrate affirmatively that a 
     manufacturer, distributor, or supplier referred to in such 
     subparagraph meets any of the conditions described in such 
     subparagraph.
       (2) Liability of health care providers.--A health care 
     provider who prescribes, or who dispenses pursuant to a 
     prescription, a medical product approved, licensed, or 
     cleared by the Food and Drug Administration shall not be 
     named as a party to a product liability lawsuit involving 
     such product and shall not be liable to a claimant in a class 
     action lawsuit against the manufacturer, distributor, or 
     seller of such product. Nothing in this paragraph prevents a 
     court from consolidating cases involving health care 
     providers and cases involving products liability claims 
     against the manufacturer, distributor, or product seller of 
     such medical product.
       (3) Packaging.--In a health care lawsuit for harm which is 
     alleged to relate to the adequacy of the packaging or 
     labeling of a drug which is required to have tamper-resistant 
     packaging under regulations of the Secretary of Health and 
     Human Services (including labeling regulations related to 
     such packaging), the manufacturer or product seller of the 
     drug shall not be held liable for punitive damages unless 
     such packaging or labeling is found by the trier of fact by 
     clear and convincing evidence to be substantially out of 
     compliance with such regulations.
       (4) Exception.--Paragraph (1) shall not apply in any health 
     care lawsuit in which--
       (A) a person, before or after premarket approval, 
     clearance, or licensure of such medical product, knowingly 
     misrepresented to or withheld from the Food and Drug 
     Administration information that is required to be submitted 
     under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 
     et seq.) or section 351 of the Public Health Service Act (42 
     U.S.C. 262) that is material and is causally related to the 
     harm which the claimant allegedly suffered; or
       (B) a person made an illegal payment to an official of the 
     Food and Drug Administration for the purpose of either 
     securing or maintaining approval, clearance, or licensure of 
     such medical product.

     SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO 
                   CLAIMANTS IN HEALTH CARE LAWSUITS.

       (a) In General.--In any health care lawsuit, if an award of 
     future damages, without reduction to present value, equaling 
     or exceeding $50,000 is made against a party with sufficient 
     insurance or other assets to fund a periodic payment of such 
     a judgment, the court shall, at the request of any party, 
     enter a judgment ordering that the future damages be paid by 
     periodic payments. In any health care lawsuit, the court may 
     be guided by the Uniform Periodic Payment of Judgments Act 
     promulgated by the National Conference of Commissioners on 
     Uniform State Laws.
       (b) Applicability.--This section applies to all actions 
     that have not been first set for trial or retrial before the 
     effective date of this Act.

     SEC. 9. DEFINITIONS.

       In this Act:
       (1) Alternative dispute resolution system; adr.--The term 
     ``alternative dispute resolution system'' or ``ADR'' means a 
     system that provides for the resolution of health care 
     lawsuits in a manner other than through a civil action 
     brought in a State or Federal court.
       (2) Claimant.--The term ``claimant'' means any person who 
     brings a health care lawsuit, including a person who asserts 
     or claims a right to legal or equitable contribution, 
     indemnity or subrogation, arising out of a health care 
     liability claim or action, and any person on whose behalf 
     such a claim is asserted or such an action is brought, 
     whether deceased, incompetent, or a minor.
       (3) Collateral source benefits.--The term ``collateral 
     source benefits'' means any amount paid or reasonably likely 
     to be paid in the future to or on behalf of the claimant, or 
     any service, product or other benefit provided or reasonably 
     likely to be provided in the future to or on behalf of the 
     claimant, as a result of the injury or wrongful death, 
     pursuant to--
       (A) any State or Federal health, sickness, income-
     disability, accident, or workers' compensation law;
       (B) any health, sickness, income-disability, or accident 
     insurance that provides health benefits or income-disability 
     coverage;
       (C) any contract or agreement of any group, organization, 
     partnership, or corporation to provide, pay for, or reimburse 
     the cost of medical, hospital, dental, or income disability 
     benefits; and
       (D) any other publicly or privately funded program.
       (4) Compensatory damages.--The term ``compensatory 
     damages'' means objectively verifiable monetary losses 
     incurred as a result of the provision of, use of, or payment 
     for (or failure to provide, use, or pay for) health care 
     services or medical products, such as past and future medical 
     expenses, loss of past and future earnings, cost of obtaining 
     domestic services, loss of employment, and loss of business 
     or employment opportunities, damages for physical and 
     emotional pain, suffering, inconvenience, physical 
     impairment, mental anguish, disfigurement, loss of enjoyment 
     of life, loss of society and companionship, loss of 
     consortium (other than loss of domestic service), hedonic 
     damages, injury to reputation, and all other nonpecuniary 
     losses of any kind or nature. The term ``compensatory 
     damages'' includes economic damages and noneconomic damages, 
     as such terms are defined in this section.
       (5) Contingent fee.--The term ``contingent fee'' includes 
     all compensation to any person or persons which is payable 
     only if a recovery is effected on behalf of one or more 
     claimants.
       (6) Economic damages.--The term ``economic damages'' means 
     objectively verifiable monetary losses incurred as a result 
     of the provision of, use of, or payment for (or failure to 
     provide, use, or pay for) health care services or medical 
     products, such as past and future medical expenses, loss of 
     past and future earnings, cost of obtaining domestic 
     services, loss of employment, and loss of business or 
     employment opportunities.
       (7) Health care lawsuit.--The term ``health care lawsuit'' 
     means any health care liability claim concerning the 
     provision of health care goods or services or any medical 
     product affecting interstate commerce, or any health care 
     liability action concerning the provision of health care 
     goods or services or any medical product affecting interstate 
     commerce, brought in a State or Federal court or pursuant to 
     an alternative dispute resolution system, against a health 
     care provider, a health care organization, or the 
     manufacturer, distributor, supplier, marketer, promoter, or 
     seller of a medical product, regardless of the theory of 
     liability on which the claim is based, or the number of 
     claimants, plaintiffs, defendants, or other parties, or the 
     number of claims or causes of action, in which the claimant 
     alleges a health care liability claim. Such term does not 
     include a claim or action which is based on criminal 
     liability; which seeks civil fines or penalties paid to 
     Federal, State, or local government; or which is grounded in 
     antitrust.
       (8) Health care liability action.--The term ``health care 
     liability action'' means a civil action brought in a State or 
     Federal Court or pursuant to an alternative dispute 
     resolution system, against a health care provider, a health 
     care organization, or the manufacturer, distributor, 
     supplier, marketer, promoter, or seller of a medical product, 
     regardless of the theory of liability on

[[Page 9272]]

     which the claim is based, or the number of plaintiffs, 
     defendants, or other parties, or the number of causes of 
     action, in which the claimant alleges a health care liability 
     claim.
       (9) Health care liability claim.--The term ``health care 
     liability claim'' means a demand by any person, whether or 
     not pursuant to ADR, against a health care provider, health 
     care organization, or the manufacturer, distributor, 
     supplier, marketer, promoter, or seller of a medical product, 
     including, but not limited to, third-party claims, cross-
     claims, counter-claims, or contribution claims, which are 
     based upon the provision of, use of, or payment for (or the 
     failure to provide, use, or pay for) health care services or 
     medical products, regardless of the theory of liability on 
     which the claim is based, or the number of plaintiffs, 
     defendants, or other parties, or the number of causes of 
     action.
       (10) Health care organization.--The term ``health care 
     organization'' means any person or entity which is obligated 
     to provide or pay for health benefits under any health plan, 
     including any person or entity acting under a contract or 
     arrangement with a health care organization to provide or 
     administer any health benefit.
       (11) Health care provider.--The term ``health care 
     provider'' means any person or entity required by State or 
     Federal laws or regulations to be licensed, registered, or 
     certified to provide health care services, and being either 
     so licensed, registered, or certified, or exempted from such 
     requirement by other statute or regulation.
       (12) Health care goods or services.--The term ``health care 
     goods or services'' means any goods or services provided by a 
     health care organization, provider, or by any individual 
     working under the supervision of a health care provider, that 
     relates to the diagnosis, prevention, or treatment of any 
     human disease or impairment, or the assessment or care of the 
     health of human beings.
       (13) Malicious intent to injure.--The term ``malicious 
     intent to injure'' means intentionally causing or attempting 
     to cause physical injury other than providing health care 
     goods or services.
       (14) Medical product.--The term ``medical product'' means a 
     drug, device, or biological product intended for humans, and 
     the terms ``drug'', ``device'', and ``biological product'' 
     have the meanings given such terms in sections 201(g)(1) and 
     201(h) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 
     321) and section 351(a) of the Public Health Service Act (42 
     U.S.C. 262(a)), respectively, including any component or raw 
     material used therein, but excluding health care services.
       (15) Noneconomic damages.--The term ``noneconomic damages'' 
     means damages for physical and emotional pain, suffering, 
     inconvenience, physical impairment, mental anguish, 
     disfigurement, loss of enjoyment of life, loss of society and 
     companionship, loss of consortium (other than loss of 
     domestic service), hedonic damages, injury to reputation, and 
     all other nonpecuniary losses of any kind or nature.
       (16) Punitive damages.--The term ``punitive damages'' means 
     damages awarded, for the purpose of punishment or deterrence, 
     and not solely for compensatory purposes, against a health 
     care provider, health care organization, or a manufacturer, 
     distributor, or supplier of a medical product. Punitive 
     damages are neither economic nor noneconomic damages.
       (17) Recovery.--The term ``recovery'' means the net sum 
     recovered after deducting any disbursements or costs incurred 
     in connection with prosecution or settlement of the claim, 
     including all costs paid or advanced by any person. Costs of 
     health care incurred by the plaintiff and the attorneys' 
     office overhead costs or charges for legal services are not 
     deductible disbursements or costs for such purpose.
       (18) State.--The term ``State'' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Virgin Islands, Guam, American Samoa, the Northern 
     Mariana Islands, the Trust Territory of the Pacific Islands, 
     and any other territory or possession of the United States, 
     or any political subdivision thereof.

     SEC. 10. EFFECT ON OTHER LAWS.

       (a) Vaccine Injury.--
       (1) To the extent that title XXI of the Public Health 
     Service Act establishes a Federal rule of law applicable to a 
     civil action brought for a vaccine-related injury or death--
       (A) this Act does not affect the application of the rule of 
     law to such an action; and
       (B) any rule of law prescribed by this Act in conflict with 
     a rule of law of such title XXI shall not apply to such 
     action.
       (2) If there is an aspect of a civil action brought for a 
     vaccine-related injury or death to which a Federal rule of 
     law under title XXI of the Public Health Service Act does not 
     apply, then this Act or otherwise applicable law (as 
     determined under this Act) will apply to such aspect of such 
     action.
       (b) Other Federal Law.--Except as provided in this section, 
     nothing in this Act shall be deemed to affect any defense 
     available to a defendant in a health care lawsuit or action 
     under any other provision of Federal law.

     SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

       (a) Health Care Lawsuits.--The provisions governing health 
     care lawsuits set forth in this Act preempt, subject to 
     subsections (b) and (c), State law to the extent that State 
     law prevents the application of any provisions of law 
     established by or under this Act. The provisions governing 
     health care lawsuits set forth in this Act supersede chapter 
     171 of title 28, United States Code, to the extent that such 
     chapter--
       (1) provides for a greater amount of damages or contingent 
     fees, a longer period in which a health care lawsuit may be 
     commenced, or a reduced applicability or scope of periodic 
     payment of future damages, than provided in this Act; or
       (2) prohibits the introduction of evidence regarding 
     collateral source benefits, or mandates or permits 
     subrogation or a lien on collateral source benefits.
       (b) Protection of States' Rights and Other Laws.--(1) Any 
     issue that is not governed by any provision of law 
     established by or under this Act (including State standards 
     of negligence) shall be governed by otherwise applicable 
     State or Federal law.
       (2) This Act shall not preempt or supersede any State or 
     Federal law that imposes greater procedural or substantive 
     protections for health care providers and health care 
     organizations from liability, loss, or damages than those 
     provided by this Act or create a cause of action.
       (c) State Flexibility.--No provision of this Act shall be 
     construed to preempt--
       (1) any State law (whether effective before, on, or after 
     the date of the enactment of this Act) that specifies a 
     particular monetary amount of compensatory or punitive 
     damages (or the total amount of damages) that may be awarded 
     in a health care lawsuit, regardless of whether such monetary 
     amount is greater or lesser than is provided for under this 
     Act, notwithstanding section 4(a); or
       (2) any defense available to a party in a health care 
     lawsuit under any other provision of State or Federal law.

     SEC. 12. APPLICABILITY; EFFECTIVE DATE.

       This Act shall apply to any health care lawsuit brought in 
     a Federal or State court, or subject to an alternative 
     dispute resolution system, that is initiated on or after the 
     date of the enactment of this Act, except that any health 
     care lawsuit arising from an injury occurring prior to the 
     date of the enactment of this Act shall be governed by the 
     applicable statute of limitations provisions in effect at the 
     time the injury occurred.

     SEC. 13. SENSE OF CONGRESS.

       It is the sense of Congress that a health insurer should be 
     liable for damages for harm caused when it makes a decision 
     as to what care is medically necessary and appropriate.

  The SPEAKER pro tempore. Pursuant to House Resolution 638, the 
gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman from 
Michigan (Mr. Conyers) each will control 20 minutes; and the gentleman 
from Texas (Mr. Barton) and the gentleman from Ohio (Mr. Brown) each 
will control 10 minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).


                             General Leave

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and to include extraneous material on H.R. 4280, 
currently under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, the national medical insurance crisis, driven by 
unlimited lawsuits, is devastating our Nation's health care system to 
the detriment of patients everywhere. Medical professional liability 
insurance rates have soared, causing major insurers to either drop 
coverage or raise premiums to unaffordable levels. Doctors are being 
forced to abandon patients and practices or to retire early, 
particularly in high-risk specialties, such as emergency medicine, 
brain surgery, and obstetrics and gynecology. Women are particularly 
hard hit, as are low-income and rural neighborhoods.
  H.R. 4280, the HEALTH Act, is modeled after California's highly 
successful health care litigation reforms enacted in 1975 and known 
under the acronym MICRA. California's reforms, which are included in 
the HEALTH Act, include reasonable limits on unquantifi-
able damages, limits on the contingency fees lawyers can charge, and 
authorization for defendants to introduce evidence to prevent double 
recoveries. The HEALTH Act also includes provisions creating a fair 
share rule, by which damages are allocated fairly in

[[Page 9273]]

direct proportion to fault; reasonable guidelines on the award of 
punitive damages; and a safe harbor from punitive damages for products 
that meet applicable FDA safety requirements.
  Information provided by the National Association of Insurance 
Commissioners shows that since 1975, premiums paid outside of 
California increased at five times the rate they increased in 
California. The Congressional Budget Office has concluded ``under the 
HEALTH Act, premiums for medical malpractice insurance ultimately would 
be an average of 25 percent to 35 percent below what they would be 
under current law.'' If California's legal reforms were implemented 
nationwide, we could spend billions of dollars more annually on patient 
care, meaning helping sick people get better.
  We all recognize that injured victims should be adequately 
compensated for their injuries, but too often in this debate we lose 
sight of the larger health care picture. This country is blessed with 
the finest health care technology in the world. It is blessed with the 
finest doctors in the world. People are smuggled into this country for 
a chance at life and healing, the best chance that they have in the 
world. The Department of Health and Human Services issued a report 
recently that includes the following amazing statistics: during the 
past half century, death rates among children and adults up to age 24 
were cut in half, and the infant mortality rate plummeted 75 percent. 
Mortality among adults between the ages of 25 and 64 fell nearly as 
much, and dropped among those 65 years and older by a third. In 2000, 
Americans enjoyed the longest life expectancy in our history, almost 77 
years.
  These amazing statistics just did not happen. There are faces behind 
the statistics, and they are our doctors. These statistics happen 
because America produces the best health care technology and the best 
doctors to use it. But now there are fewer and fewer doctors to use 
that miraculous technology or to use that technology where their 
patients are. We have the best brain scanning and best brain operation 
devices in history and fewer and fewer neurosurgeons to use them.
  Unlimited lawsuits are driving doctors out of the healing profession. 
They are making us all less safe, all in the name of unlimited lawsuits 
and the personal injury lawyers' lust for their cut of unlimited awards 
for unquantifiable damages. But when someone gets sick or is bringing a 
child into the world, and we cannot call the doctor, who will we call? 
When you pick up the phone and call the hospital because someone you 
love has suffered a brain injury, and you are told, sorry, lawsuits 
made it too expensive for brain surgeons to practice here, who will 
save your loved one? You cannot call a lawyer. A lawyer cannot perform 
brain surgery.
  We all need doctors. And we, as our Nation's representatives, have to 
choose, right here and today. Do we want the abstract ability to sue a 
doctor for unlimited, unquantifiable jackpot damage awards when doing 
so means that there will be no doctors to treat ourselves and our loved 
ones in the first place? Of course not. So on behalf of all 287 million 
Americans, all of whom are patients, let us pass this bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  My colleagues, it is slightly incredible that with all the pressing 
legislative challenges facing us today, we have nothing better to do 
than redebate and revote the same tired medical malpractice proposals 
that have been brought forward by a conservative Congress over the last 
decade. This is the fifth time in 14 months that we have had this bill 
before the House of Representatives. Sooner or later somebody is going 
to get it, that this bill is not likely ever to go anywhere because it 
insults the commonsense health care needs of the American people.
  Now, how can you put so many bad things in one bill? Let me explain 
how devious this thing can get. The bill before us would first 
supersede the law in every State in the Union, and these are states-
righters over here, to cap noneconomic damages, to cap punitive 
damages, to cap attorneys' fees for those lawyers that would represent 
the poor, to reduce the statute of limitations, to eliminate joint and 
several liability and eliminate the collateral source rule. All in one 
bill. Six incredible things.
  Embarrassed? No, I do not think they are. Rather than helping, when 
this Nation faces a national health care system crisis of growing 
proportions, instead of helping Americans that seek health care 
remedies and remedies for bad medical practice, and to help the medical 
profession itself, the bill before us does none of that; but it does 
enrich the insurance companies of America, the HMOs of this country, 
and the manufacturers and distributors of medical products, which 
sometimes are defective, as well as the pharmaceuticals that might be 
involved, too.
  In other words, all the bad, unpleasant negative parts of our health 
care system are being protected. And who do we do it at the expense of? 
The innocent victims of medical malpractice, particularly women and 
children and the elderly poor.
  I am embarrassed that this measure is on the floor for the sixth time 
in 14 months.
  It's amazing to me that with all of the pressing problems facing us 
today, the Majority has nothing better to do than redebate and revote 
the same tired old medical malpractice proposals they have been pushing 
for the last ten years. In fact, this is the fifth time the Congress 
has voted on this bill in the past 14 months.
  The bill before us today would supersede the law in all 50 states to 
cap non-economic damages, cap and limit punitive damages, cap 
attorney's fees for poor victims, shorten the statute of limitations, 
eliminate joint and several liability, and eliminate collateral source.
  Rather than helping doctors and victims, the bill before us pads the 
pockets of insurance companies, HMOs, and the manufacturers and 
distributors of defective medical products and pharmaceuticals. And it 
does so at the expense of innocent victims, particularly women, 
children, the elderly and the poor.
  We need to cut the charades and get to the heart of the problem. The 
insurance industry is a good place to start. We have seen in the past 
that the insurance industry goes through boom and bust cycles, with 
premiums ebbing and flowing as companies enter and exit the market and 
investment income rises and falls. We also know from past experience 
that the insurance industry--which is exempt from the antitrust laws--
is not immune from collusion, price fixing and other anticompetitive 
problems.
  It is also clear that the legislative solution largely focused on 
limiting victims rights available under our state tort system will do 
little other than increase the incidence of medical malpractice--
already the third leading cause of preventable death in our nation. In 
other words, by limiting liability, we will increase incentives for 
misconduct.
  Under this proposal, Congress would be saying to the American people 
that we don't care if you lose your ability to bear children, we don't 
care if you are forced to live in excruciating pain for the remainder 
of your life, and we don't care if you are permanently disfigured or 
crippled. The majority in this bill would limit recovery in tens of 
thousands of these cases, regardless of their merits.
  The proposed new statue of limitations takes absolutely no account of 
the fact that many injuries caused by malpractice or faulty drugs take 
years or even decades to manifest themselves. Under the proposal, a 
patient who is negligently inflicted with HIV-infected blood and 
develops AIDS six years later would be forever barred from filing a 
liability claim.
  The so-called periodic payment provisions are nothing less than a 
federal installment plan for HMO's. The bill would allow insurance 
companies teetering on the verge of bankruptcy to delay and then 
completely avoid future financial obligations. And they would have no 
obligation to pay interest on amounts they owe their victims.
  And guess who else gets a sweetheart deal under this legislation? The 
drug companies. The producers of killer devices like the Dalkon Shield, 
the Cooper-7 IUD, high absorbency tampons linked to toxic shock 
syndrome, and silicone gel implants all would have completely avoided 
billions of dollars in damages had this bill been law.
  Nearly 100,000 people die in this country each and every year from 
medical malpractice. At a time when 5 percent of the health care 
professionals cause 54 percent of all medical malpractice injuries, the 
last thing

[[Page 9274]]

we need to do is exacerbate this problem while ignoring the true causes 
of the medical malpractice crisis in America. I urge my colleagues to 
reject this anti-patient, anti-victim legislation.
  Mr. Speaker, I reserve the balance of my time.

                              {time}  1615

  Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, let me say before I give my prepared statement that I 
too am embarrassed that this issue is on the floor for the sixth time 
in so many months because the other body is yet to do anything about 
it. It is past time that we should have passed this and the other body 
should have passed it, and we should have all attended a signing 
ceremony with the President of the United States so we can bring some 
medical malpractice reform to the health care providers of our country.
  We are facing a crisis in this country, and I do not use that term 
lightly, that dramatically affects our efforts to improve access to 
high-quality, affordable health care. Doctors in at least 19 States are 
facing astronomical increases in their medical malpractice insurance 
premiums. They have had their premiums doubled, and in some cases 
tripled. A hostile liability environment has forced doctors to stop 
performing certain procedures. In my own congressional district, I know 
of doctors who have retired because they cannot afford the medical 
malpractice insurance to continue their practices.
  This means as there are fewer doctors to provide health care, 
patients are going to be left with fewer treatment options. Fewer OB-
GYNs means less preventive health care for women. It means less regular 
screenings for reproductive cancers, high blood pressure, infections 
and other health risks, and less preventive care means higher health 
care costs down the road.
  As insurance premiums continue to skyrocket, doctors will look to cut 
back on or eliminate care for higher-risk patients such as the 
uninsured. This will also affect how we recruit new doctors. Our 
country already has a difficult time providing access to high-quality 
health care in many underserved areas. We already lack a true health 
care marketplace where patients can shop freely for health care 
services and have a direct say about which doctor they will see. We do 
not need to make these problems worse, we need to fix them.
  The bill before us would begin the effort to fix them. The medical 
liability crisis is driving doctors out of the practice of medicine. 
Even if you have health insurance, what is it worth if there is no 
doctor available to treat you? It is not right that our courts have 
become a legal lotto system rather than a fair system that judges 
meritorious claims.
  We all agree if a patient is injured through malpractice or 
negligence, that patient should be compensated fairly for his injuries; 
but that is not happening today. Injured patients have to wait on 
average 5 years before a medical injury case is complete. Adding insult 
to injury, patients lose on average almost 60 percent of their 
compensation to attorneys and the courts.
  Even though 60 percent of medical malpractice claims against doctors 
are dropped or dismissed, we all pay the price. According to HHS, the 
direct cost of malpractice insurance and the indirect cost from 
defensive medicine raises the Federal Government's health care share of 
the cost by at least $28 billion a year.
  H.R. 4280 will help all Americans. It speeds recovery for injured 
patients who truly deserve compensation. It removes the perverse 
incentives in our current medical liability system that force doctors 
to look at patients as potential lawsuits. It will encourage employers 
to increase the scope of their health insurance benefits, and it will 
allow for greater investment in lifesaving technologies which help make 
America's health care system the best in the world.
  This legislation encompasses the best policy that can actually fix 
the medical malpractice crisis. It is high time for this legislation to 
become law.
  Again, I share the concerns of the gentleman from Michigan (Mr. 
Conyers) that we have had to vote on this a number of times on the 
House floor. The problem is not that the House is continuing to vote on 
it, the problem is that the other body will not bring it up for a vote. 
I hope that we can pass it today and get the other body to bring it up 
and we can go to a signing ceremony with the President of the United 
States.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I ask unanimous consent to yield the 
balance of my time to the gentleman from Virginia (Mr. Scott) from the 
Committee on the Judiciary, and that he may control that time.
  The SPEAKER pro tempore (Mr. Sweeney). Is there objection to the 
request of the gentleman from Michigan?
  There was no objection.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield 30 seconds to the 
gentleman from Michigan (Mr. Conyers), the ranking member of the 
Committee on the Judiciary.
  Mr. CONYERS. Mr. Speaker, I appreciate the comments of the gentleman 
from Texas (Mr. Barton), the chairman of the Committee on Energy and 
Commerce, who explains to us why this keeps coming up, and he refers 
charitably to the other body.
  The other body for the last 10 years has been controlled by the 
gentleman's party. The last 10 years. The present head of the Senate is 
not only a Member of the gentleman's party, but he is a medical doctor.
  I ask the gentleman, what could he and I do together to help the 
other body get the message here?
  Mr. BARTON of Texas. Mr. Speaker, how much time remains for each 
side?
  The SPEAKER pro tempore. The gentleman from Wisconsin (Mr. 
Sensenbrenner) has 15 minutes remaining, the gentleman from Virginia 
(Mr. Scott) has 16 minutes remaining; the gentleman from Texas (Mr. 
Barton) has 6 minutes remaining, and the gentleman from Ohio (Mr. 
Brown) has 10 minutes remaining.
  Mr. BARTON of Texas. Mr. Speaker, I yield 2 minutes to the gentleman 
from Michigan (Mr. Conyers) to engage in a colloquy.
  Mr. CONYERS. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Mr. BARTON of Texas. Mr. Speaker, will the gentleman yield?
  Mr. CONYERS. I yield to the gentleman from Texas.
  Mr. BARTON of Texas. Mr. Speaker, I share the frustration that the 
gentleman has with the other body. If we could work together to get 
Members from the other body on both sides of the aisle to vote for 
cloture, and as the gentleman well knows, regardless of who controls 
the other body, it takes 60 votes to agree to limit debate, and a fair 
number of Members of the gentleman's party in the other body have 
failed to vote for cloture on this issue. I would be happy to work with 
the gentleman to work for cloture to bring the bill up.
  Mr. CONYERS. I would be interested; and is the gentleman interested 
in the six points that I just raised that make this bill problematic? 
We cannot work together on two different bills.
  Mr. BARTON of Texas. Mr. Speaker, if the gentleman would continue to 
yield, if we can at least let some bill come up for a vote, we can 
solve this in conference. The policy difference can be worked out in 
conference, but unless there is a conference with the other body, there 
is not going to be anything to work out.
  Mr. CONYERS. Mr. Speaker, it is my experience in conferences the 
lights frequently go out and measures get substituted and all kinds of 
weird things go on. Let us do this in broad daylight, with everybody 
looking and listening. Conferences have not been the way the democratic 
process has been enhanced in my career in Congress, sir.
  Mr. BARTON of Texas. Mr. Speaker, if the gentleman would continue to 
yield, the conference mechanism may not be as perfect as it should be, 
but it is a mechanism where policy differences can be worked on.
  Mr. CONYERS. Mr. Speaker, could I recommend that the gentleman and I

[[Page 9275]]

and my chairman, the gentleman from Wisconsin (Mr. Sensenbrenner), 
perhaps we can enter into an informal colloquy with some of the leaders 
in the other body and see if we can end this constant repetition of 
what is going on here in the House today.
  Mr. BARTON of Texas. Mr. Speaker, I am interested in doing that.


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore. The Chair would remind Members to confine 
their remarks to factual references to the other body and avoid 
characterizations of Senate action or inaction, remarks urging Senate 
action or inaction, or references to particular Senators.
  Mr. BROWN of Ohio. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I share the consternation of the gentleman from Michigan 
(Mr. Conyers). In this country we are facing problems in Iraq, yet this 
House does nothing. We are listening to seniors say please fix the 
Medicare discount card program bill; this House does nothing. We are 
hearing from people in my State of Ohio that we have lost 200 jobs 
every day in the Bush administration; we are doing nothing about that. 
We will not extend unemployment benefits or anything else. We are 
hearing people talk about drug prices being one-half and one-third in 
Canada what they are here; we are not doing anything about that. We 
have lost so much manufacturing in this country, 1 out of 7 
manufacturing jobs has simply disappeared since George Bush took 
office.
  Yet for the fifth time in 14 months, as the gentleman from Michigan 
said, we are debating a medical malpractice bill that does not do 
anything about medical malpractice. I support malpractice reform, as 
most Members of this body do, but I oppose this bill.
  The Republicans lay the blame for rising medical malpractice premiums 
on the victims of medical malpractice. The bill does not have one 
provision acknowledging the insurance industry's accountability for 
skyrocketing premiums, not one provision to keep the insurance industry 
accountable.
  Insurers have tripled their investment in the stock market over the 
past 10 years, now they are trying to recoup their losses from doctors 
and premiums from hospitals and other medical providers, and from 
patients. Insurers low- balled their rates to attract new customers, 
and then they went overboard and depleted their reserves. That is not 
our fault, that is not the patients' fault or doctors' fault. Rates 
have to exceed costs to stabilize those reserves, and the recklessness 
on the part of insurers is clearly a factor in the recent rate spikes.
  Democrats have repeatedly tried to negotiate with the Republican 
majority on this issue. We asked the majority to consider insurance 
reforms; they absolutely refused even to talk about it. We asked the 
majority to subpoena insurance company records so we really could 
understand and get to the bottom of the rate spikes and so we could be 
sure we were solving the real problems; the Republicans refused to even 
talk about it.
  There were avenues we could take to stabilize medical malpractice 
premiums: reinsurance pools, rate bands, loss ratio requirements, 
reserve requirements, and improved transparency, but the insurance 
industry opposes these changes. The insurance industry gives a lot of 
money to President Bush and the Republican leadership, so the 
Republican leadership does not even consider these insurance company 
issues. This bill assumes the insurance industry's business decisions 
play no role in setting premiums. It is always the patient's fault.
  In the Committee on Energy and Commerce and in the Subcommittee on 
Health, I had an amendment that said whatever money we save from the 
caps has to go towards lower premiums for doctors and hospitals. 
Because the insurance industry gives a lot of money to Republicans, it 
was voted down on behalf of the insurance industry on a party-line 
vote.
  This bill is doomed to fail, even if it would become law, and the 
proof is in California. California has had damage caps since the 1970s. 
It now has the most stringent caps in the country; but caps alone did 
nothing. They were a colossal failure in California. Premiums for 
medical malpractice were higher than the national average. They were 
growing faster than the national average.

                              {time}  1630

  Eventually, California recognized its mistake and implemented a set 
of malpractice insurance reforms. Since then, premiums have moderated. 
But this bill does not emulate California's successes. It only imitates 
California's mistakes.
  It is bad enough the bill ignores the failure of a cap-only approach. 
It takes another swipe at patients with a cap system that says the same 
injury causes more harm in dollar terms if it happens to a CEO than it 
does if it happens to his gardener. Like its predecessor, this bill 
contains provisions wholly unrelated to the medical malpractice issue. 
It says HMOs that deny patients needed medical care cannot be held 
accountable, yet HMOs continue to post robust profits, earning $6 
billion in the first 9 months of 2003, a 52 percent increase over last 
year.
  This bill says drug companies who sell medicine with toxic side 
effects are not responsible. Yet they are protecting the drug industry 
which has been the most profitable industry in America for 20 years 
running. And the bill says manufacturers of defective medical equipment 
get a free pass. They are doing all right, too.
  In this bill, businesses are never at fault, patients are greedy, the 
U.S. Congress knows better than a jury of your peers in your community, 
and State laws are just cast aside without a second thought. If my 
friends in this body really wanted malpractice reform, if they really 
wanted to help doctors deal with these outrageous premiums they are 
paying, they would not use this bill to help their drug company 
contributors, they would not use this bill to help their insurance 
company contributors, they would not use this bill to help their HMO 
contributors. That is what this bill is all about.
  At a time when the public is calling for greater corporate 
accountability, this bill turns on the public itself and says injured 
patients, not the system that is designed to protect them, are at 
fault. This is not reform. It is callous injustice.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentlewoman from Tennessee (Mrs. Blackburn).
  Mrs. BLACKBURN. Mr. Speaker, America's health care system is facing a 
malpractice abuse crisis. This single issue has driven up costs, it has 
increased the number of uninsured, and it has forced health providers 
out of our rural areas. Doctors are facing mounting costs. The sky-high 
noneconomic damage awards, which end up lining the pockets of the 
powerful trial lawyer lobby, are responsible for many of the elements 
that are plaguing this system.
  Most of our medical liability claims, up to 70 percent, do not result 
in any payments to the patients. The lawyers' fees account for 40 
percent or more of these multimillion-dollar payouts. The effect is 
clear. The lawsuits and the trial lawyers force this situation with 
enormous insurance rates. They then charge you and me and businesses 
across the country higher prices.
  Employers can attest to what the high cost of health care is doing to 
them. They hurt when they cannot afford to offer coverage to their 
workers. Our rural communities understand this issue. The family doctor 
who grew up with them there in the town is disappearing. They are being 
squeezed out by this vicious cycle. This should be an easy vote. It is 
common sense, and it is going to help save rural health care and save 
lives.
  Mr. BARTON of Texas. Mr. Speaker, I ask unanimous consent that the 
gentleman from Pennsylvania (Mr. Greenwood) control the balance of my 
time.
  The SPEAKER pro tempore (Mr. Sweeney). Is there objection to the 
request of the gentleman from Texas?
  There was no objection.

[[Page 9276]]


  Mr. SCOTT of Virginia. Mr. Speaker, I yield 1 minute to the gentleman 
from Florida (Mr. Wexler).
  Mr. WEXLER. Mr. Speaker, once again Republicans are attempting to 
pass ineffective anticonsumer legislation that caps medical malpractice 
awards at $250,000. The habitual Republican response to the malpractice 
crisis, punish the victims. This bill fails to reduce medical 
malpractice costs. In States that recently capped medical malpractice 
awards, the rates have not gone down as promised. In Florida, which 
capped rates last year, one insurer requested an inconceivable 45 
percent increase in rates.
  Mr. Speaker, why not look at the root cause of this health care 
emergency and adopt desperately needed insurance reform? I urge my 
colleagues to vote against this shortsighted measure and support real 
insurance reform which protects victims and provides relief to doctors 
and health care providers.
  Mr. GREENWOOD. Mr. Speaker, I yield 1 minute to the gentleman from 
California (Mr. Cox), the coauthor of this bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from California (Mr. Cox).
  The SPEAKER pro tempore. The gentleman from California (Mr. Cox) is 
recognized for 2 minutes.
  Mr. COX. Mr. Speaker, this is Cover the Uninsured Week, organized by 
patients, physicians and hospitals to promote access to care to all 
Americans. They are calling on Congress to act. We are here to answer 
that call. We are here today because patients are losing. They are 
losing their access to care. Many have already lost it. The General 
Accounting Office has confirmed it. In at least 10 percent of these 
United States, sky-high medical liability costs are preventing patients 
from getting emergency surgery. They are preventing expectant mothers 
from having access to doctors to deliver their babies.
  It has been 10 years since I first wrote this legislation that is now 
the Greenwood-Cox bill before us today. In that time, the number of 
medical lawsuits has risen 25 percent. The median damage award for 
medical lawsuits against hospitals, physicians and nurses right now is 
rising 43 percent per year. In some States, liability insurance 
premiums are rising 100 percent or more for so-called high-risk 
specialties, high risk because of the lawsuits, not because of the 
medical procedures involved, such as general surgery, 130 percent; 
internal medicine 130 percent; and obstetrics, OB-GYN, 165 percent. The 
money for these lawsuits comes directly from our health care system. 
Doctors and hospitals now spend more on liability insurance than they 
do on medical equipment.
  The bill before the House today will ensure that patients have access 
to the medical care that they need. It is based on our law in 
California where I come from that was enacted by a Democratic 
legislature and signed by a Democratic Governor, and it works.
  In our State since these reforms have taken place, California's 
health liability insurance premiums in constant dollars have fallen by 
40 percent. This while we are having crises in other States. Injured 
patients in California receive more compensation and receive it more 
quickly than in the United States as a whole. They receive a greater 
share of the recoveries in these lawsuits. California does not suffer 
from the flight of doctors or the closure of emergency rooms because we 
have the reforms in this bill. This bill balances the interests of 
billionaire lawyers and middle-class patients. It is time that patients 
have access to the care that they need.
  Mr. BROWN of Ohio. Mr. Speaker, I yield 2 minutes to the gentleman 
from Texas (Mr. Green).
  Mr. GREEN of Texas. Mr. Speaker, I rise today in opposition to not 
only this bill but the package of bills. In all honesty, in this bill 
people do not get sued for malpractice in Federal court typically. It 
is in State court. Like the State of California, the States can deal 
with that issue.
  I rise in opposition to these bills simply because we have more 
important pressing needs of our health care system, the fact that 44 
million Americans are without health insurance. This week is National 
Cover the Uninsured Week; and coming from the great State of Texas, I 
find it alarming that over 30 percent of Texans are without health 
insurance.
  My hometown, Houston, is the home of the world-class Texas Medical 
Center. Yet without health insurance, too many Texans do not have 
access to lifesaving medical research and treatments performed at the 
medical center. Tackling this country's health care problems does not 
call for the unsuccessful piecemeal approach that we are considering 
this week. Passing these three bills would just be like rearranging the 
deck chairs on the Titanic. Our focus needs to be on providing all 
Americans with health insurance so that they will get the preventive 
care needed to keep them healthy and out of the emergency rooms. That 
is the way to keep health care costs down.
  Unfortunately, policies enacted by this Congress and the States have 
taken health care in the wrong direction. Our fiscal policies have 
starved the States of crucial health care funding. State cuts in the 
CHIP program in Texas have dropped almost 170,000 children, and there 
is no way to ensure that our children get health care. To get our 
country's health care system out of this ditch, we have to stop 
digging. Let us give our children a healthy start and re-enroll them in 
CHIP. Let us also make sure that their parents can have access to the 
same care. In other words, pass legislation here to create a CHIP for 
parents. In my home State of Texas, that policy option alone would 
provide 67 percent of these parents with health insurance.
  The uninsured in this country too often fall through the cracks of 
our health care system. For the health of our Nation, we must provide 
Americans with health insurance, not last year's ideas that these bills 
give them.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentleman from Iowa (Mr. King).
  Mr. KING of Iowa. I thank the gentleman for yielding me this time.
  Mr. Speaker, not too long ago I got on an airplane ride. Across the 
aisle from me was a young woman holding her 7- or 8-month-old daughter. 
This young woman was also an OB-GYN. She began to talk to me about the 
practice that she has invested in had a 600 percent increase in the 
premiums in one single year. That is the worst I have heard of, but 
there are many out there that run 200, 300, 400 percent increases in 
premiums.
  I represent a part of the State of Iowa. Iowa is last in the Nation 
in Medicare reimbursement rates. Now we are seeing an increase in 
medical malpractice premiums. Good things do come out of California. 
This is a good idea. It is a good model, and it is a good pattern. I am 
happy to follow the lead of the gentleman from California (Mr. Cox) on 
this issue. We are losing access to health care in Iowa because of the 
cost of premiums, because Medicare reimbursement rates are the last in 
the Nation. Our issue is access to health care. We must reform this 
practice. Three percent of the gross domestic product of the United 
States of America is being consumed by litigation. Here is a place to 
start. I would like to do very much more.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself 6 minutes.
  Mr. Speaker, this bill does nothing to improve the system. It does 
nothing to deal with the insurance rates and the increases in premiums, 
but it does deny victims compensation when they are victims of 
malpractice. I think it may be helpful to go a little section by 
section to see what is actually in the bill to see how it actually does 
what some of the people are talking about.
  Section 3, for example, is entitled ``Encouraging Speedy Resolution 
of Claims.'' Mr. Speaker, injured parties do not need encouragement to 
get a speedy resolution of the claim. This section only invalidates 
bona fide claims that are filed after a set deadline. It also creates a 
confusing matrix because some State deadlines are preempted. Others are 
not. And so you have that confusing matrix of deadlines and may even 
miss the deadline by mistake.

[[Page 9277]]

  Section 4 is called ``Compensating Patient Injury.'' Actually, that 
is the section which limits compensation to innocent victims. It also 
has what is called the ``fair share rule.'' I think most States, but at 
least Virginia and many States, allow a victim to collect all of the 
damages from one defendant. That defendant can then seek contribution 
from others involved. In practice, that contribution is worked out in 
advance by who pays for what insurance.
  This so-called fair share requires the victim not only to prove a 
separate case against each and every defendant who may be involved but 
it also requires the plaintiff to decide and prove what percentage each 
one owes. Often the plaintiff does not know what happened. All they 
know is they are a victim of malpractice. This provision will require 
the plaintiff to have a separate case and pay for the expenses of 
separate cases against each and every person. Otherwise they may be 
afflicted with the ``empty chair defense'' where everybody in the 
courtroom starts pointing to an empty chair and says somebody else had 
10 percent or 20 percent.
  Section 5 is ``Maximizing Patient Recovery.'' Actually, that is a 
provision that limits attorneys' fees making it likely that a plaintiff 
will not even be able to hire a lawyer. You do not hear any victims 
groups clamoring for limitation on attorneys' fees. The defendants are 
not affected by the plaintiff attorneys' fees. They do not pay the 
plaintiff attorneys' fees. If the award is $100,000 and the plaintiff's 
attorney charges 50 percent, the defendant pays $100,000. If the lawyer 
charges 25 percent, still $100,000. If the lawyer does not charge 
anything at all, just the same, $100,000. The only way that this will 
help malpractice premiums is if the plaintiff cannot bring the bona 
fide case at all, cannot bring the case because they cannot hire a 
lawyer with the fees. That is not fair. It is even more likely when you 
have this fair share thing where the lawyer has to have five and six 
cases in the same case.
  There is another provision called ``Additional Health Benefits.'' 
That is a provision that says if the victim has health insurance, the 
benefit of that health insurance goes to the one who committed the 
malpractice. In Virginia and many other States, if you have health 
insurance, you benefit. In other States, the health insurance company 
can get its money back after the case is settled because the 
malpractice recovery will pay the health expenses. Presumably under 
that case, the premiums will be lower. But in this bill, the benefit 
goes to the one who committed the malpractice. This bill is so bizarre 
that if you are working for a self-insured employer who is obligated to 
pay the health expenses of an employee and that employee is a victim of 
malpractice and runs up a $50,000 hospital bill, the business has to 
pay that $50,000 bill even though the one committing the malpractice is 
fully insured and could have paid. I cannot wait for some small 
businesses to come to us and ask why they had to pay the bill as a 
result of malpractice.
  Mr. Speaker, there is another provision under ``Punitive Damages.'' 
This bill provides that if a jury finds by the preponderance of the 
evidence that the doctor acted with malicious intent to intentionally 
injure a patient, not just recklessly negligent, acted with malicious 
intent to injure, that is not enough under the bill, because the 
evidence does not have to be just by the preponderance of the evidence; 
it has to be by clear and convincing evidence.
  Mr. Speaker, this bill will not help injured victims of malpractice, 
and it is unlikely to reduce premiums. A chart of States in order of 
the costs of malpractice premiums shows some States at the top with 
caps, some with caps at the bottom, some with caps in the middle. There 
is no pattern to the chart. They are all over the place. The caps 
apparently did not make any difference at all.
  We have heard a lot about the doctor shortage. This is not limited to 
doctors. This tort reform bill affects the health care provider, a 
health care organization, an HMO, manufacturer, distributor, supplier, 
marketer, promoter, a seller of a medical product regardless of the 
theory of liability on which the claim is based. This does not help 
victims. It probably will not even reduce premiums.
  Mr. Speaker, I would hope that we would defeat the bill so that it 
will not be enacted. That has been the judgment of the United States 
Congress for the last 14 months. I hope it is still the judgment of the 
United States Congress.
  Mr. Speaker, I reserve the balance of my time.
  Mr. GREENWOOD. Mr. Speaker, I yield myself 2 minutes.
  This bill is on the floor for one reason and one reason alone. That 
reason is that across this country there is a crisis. The crisis is 
that the cost of medical malpractice insurance is so expensive that 
trauma centers have to close, that obstetricians cannot deliver babies 
anymore, that neurosurgeons cannot preserve lives, that orthopedic 
surgeons cannot do what they are supposed to do. It is a crisis. It 
also so happens that if this bill is passed, it will, according to the 
CBO, reduce the cost of medical malpractice insurance by 25 percent 
which will go a long way to solving that crisis.
  It also has some side benefits. By making the cost of medical 
malpractice insurance less expensive, it makes the cost of health care 
less expensive which means that more employers can offer more of their 
employees insurance.

                              {time}  1645

  In fact, according to the CBO, 3.9 million Americans who do not have 
health care today would get health care just because we passed this 
bill. We ought to do it. Another side benefit, according to the CBO, is 
that because these costs are built into the costs of Medicaid and 
Medicare, we would save $15 million in those programs over the next 10 
years, which we could apply to real important health care needs.
  The gentleman from Michigan (Mr. Conyers) has said we are passing 
this bill on the floor, it is never going to pass in the Senate. This 
bill went to the Senate and Majority Leader Frist made a motion to 
consider the bill, and the Democrats objected to the consideration of 
the bill, to even having the debate. And then when it came time to vote 
on whether to have that debate, the Democrats voted no, we do not want 
to even debate this bill. So one can debate the fine points. One can 
say I have a better way to solve this problem or another Senator can 
say I do not like the cap here or I do not like this aspect of it. The 
most deliberative body on the face of the Earth is supposed to come to 
the floor of the Senate with their ideas, with their amendments, and 
engage in a debate. Instead, all that they have done is obstruct.


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. Sweeney). The Chair will once again 
remind Members to confine their remarks to factual references to the 
other body and avoid characterizations of Senate action or inaction, 
remarks urging Senate action or inaction, or references to particular 
Senators.
  Mr. BROWN of Ohio. Mr. Speaker, I yield the balance of my time to the 
gentlewoman from Colorado (Ms. DeGette).
  Mr. SCOTT of Virginia. Mr. Speaker, I yield 1 minute to the 
gentlewoman from Colorado (Ms. DeGette).
  Ms. DeGETTE. Mr. Speaker, every so often in this body, I think it is 
important to talk about facts. Instead of legislating by an anecdote, I 
would like to actually look at some facts today.
  Those on the other side would have us believe that limiting patients' 
access to the courts will relieve high malpractice insurance premiums. 
But the fact is there has been no increase in the rate of malpractice 
claims filed in recent years, and the fact is the average payout has 
remained steady for a decade. The fact is that California, the State 
that has been most successful in curbing malpractice costs, only did so 
after passing a voter initiative that also reformed the insurance 
system.
  Despite this evidence, proponents of this bill continue to represent 
it as relief for physicians. In reality, it is a bald effort by the 
insurance industry to pass off their costs on already suffering 
patients. This bill will disproportionately affect women, low-income 
individuals, and children because the caps

[[Page 9278]]

on noneconomic damages will affect them. Since they do not make a lot 
of money, they will not have a lot of economic damages to be awarded by 
the courts.
  Real people will suffer a second injustice under this legislation, 
people like Heather Lewinski, who came before our committee and 
testified, a 17-year-old girl who suffered permanent facial 
disfigurement at the hands of a plastic surgeon who lied to her and her 
family. And this young woman came before us and said her greatest fear 
was she would never have a date. People like Linda McDougal. This is 
Linda McDougal in this poster right here. Linda McDougal's breasts were 
amputated after she had been misdiagnosed with cancer, and here she is 
today. She was completely fine. And the family of Jesica Santillan, a 
little girl who died because the hospital failed to ensure that the 
heart and lungs she was about to receive would be compatible with her 
blood type. Her family will be denied just compensation for her 
suffering.
  If we really wanted to fix the crisis that is plaguing our Nation's 
doctors, we should take a good look at the insurance industries, as we 
heard from my colleague from Ohio. Instead, we are considering a bill 
that is akin to curing a headache by amputating an arm. Arbitrarily 
limiting patients' rights is not fair, and it will not solve the 
problem.
  Let me talk for a minute about some of the anecdotes upon which we 
are basing this legislation. We heard that obstetrics wards were 
closing down because of liability insurance premiums. The example given 
by the AMA said that Pennsylvania's Jefferson Health System closed its 
obstetrics ward because of this reason, but 2 years later this 
obstetrics ward is still up and running and accepting new patients. In 
May, 2003, the AMA said that a group of 10 neurosurgeons in Washington 
State had been dropped by their malpractice insurer. As of 2004, the 
group is doing just fine and taking new patients. Finally, in January 
2004, just a few months ago, President Bush said there was a doctor in 
Arkansas who stopped delivering babies because of rising insurance 
costs. That turned out to be completely untrue.
  If there is a problem here, let us let the States fix it. Let us not 
put it on people like Linda McDougal.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, what the gentlewoman from Colorado did not tell us is 
what is not getting media attention, and that is that doctors are 
closing up their practices. When the Committee on the Judiciary heard 
testimony on this issue, the wife of a man named Tony Dyess came and 
spoke. Mr. Dyess was involved in an automobile accident. He had a 
spinal cord injury, and because there were no neurosurgeons left in 
southern Mississippi, it took 6 hours to airlift him to a hospital in 
Louisiana that has some better medical liability laws, and the golden 
hour for neurosurgery had passed; and as a result Tony Dyess is a 
quadriplegic simply because malpractice insurance costs chased the 
neurosurgeons out of southern Mississippi.
  This is an issue of access to health care, and we cannot have 
liability insurance costs force doctors to close their practices and 
not have access to people who need doctors and need them desperately.
  Mr. Speaker, I yield 1 minute to the gentleman from Pennsylvania (Mr. 
Shuster).
  Mr. SHUSTER. Mr. Speaker, I rise today in strong support of H.R. 
4280. This country's health care system and its providers are currently 
faced with a crisis in regards to medical liability coverage; and, in 
fact, my home State of Pennsylvania unfortunately leads the way. Our 
doctors are leaving or retiring, and currently only 4 percent of 
physicians practicing in Pennsylvania are under the age of 35. Students 
graduating from our medical schools are choosing not to stay in 
Pennsylvania to practice medicine. The largest hospital in my district, 
the Altoona Hospital, their malpractice insurance has gone from in 2000 
$1 million a year to $2.7 million in 2003; $1.7 million, and not a 
penny of it is going to improve care to the patients and the people of 
my district.
  This real increasing threat to patients' access to quality care 
cannot be ignored. The medical liability system in this country is in 
desperate need of reform. So I urge my colleagues to vote ``yes'' on 
H.R. 4280.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may 
consume.
  I will enter into the Record an article from the Morning Call 
newspaper in Pennsylvania, and I will just read the first sentence. 
April 23, 2004, ``The chairman of the Pennsylvania Medical Society 
acknowledged Thursday to State lawmakers that the doctors group lacks 
statistical evidence to support its 3-year claim that doctors are 
leaving the State in large numbers.''
  The whole article will be introduced.
  I have the GAO study that was cited June, 2003; and let me just read 
a couple of points out of it:
  ``Multiple factors have contributed to the recent increases in 
medical malpractice premiums in seven States we analyzed. First, since 
1998 insurers' losses on medical malpractice claims have increased 
rapidly in some States,'' and they ``found that the increased losses 
appeared to be the greatest contributor to increased premium rates, but 
a lack of comprehensive data at the national and State levels on 
insurers' medical malpractice claims and the associated losses 
prevented us from fully analyzing the composition and causes of those 
losses.
  ``Second, from 1998 through 2001, medical malpractice insurers 
experienced decreases in their investment income as interest rates fell 
on the bonds that generally make up around 80 percent of these 
insurers' investment portfolios.
  `` . . . a decrease in investment income meant that income from 
insurance premiums had to cover a larger share of insurers' costs. 
Third, during the 1990s, insurers competed vigorously for medical 
malpractice business, and several factors, including high investment 
returns, permitted them to offer prices that in hindsight, for some 
insurers, did not completely cover their ultimate losses on that 
business. As a result of this, some companies became insolvent or 
voluntarily left the market, reducing the downward competitive pressure 
on premium rates that had existed through the 1990s.''
  I say that to say that there are a number of factors that have caused 
the premiums to go up that have nothing to do with the medical 
malpractice situation or the laws in medical malpractice and that this 
bill may or may not have anything to do with future premiums.

                [From the Morning Call, April 23, 2004]

                   Doctors Can't Prove Thinning Ranks

                          (By John M.R. Bull)

       Harrisburg.--The chairman of the Pennsylvania Medical 
     Society acknowledged Thursday to state lawmakers that the 
     doctors group lacks statistical evidence to support its 
     three-year claim that doctors are leaving the state in large 
     numbers.
       ``Some data sources show an 800-doctor gain,'' internist 
     Daniel Glunk of Williamsport testified before the House 
     Insurance Committee. ``The problem is no one has definitive 
     numbers . . . and that there is conflicting data.''
       That number includes 1,000 medical residents. If those 
     aren't counted, he said, there would be a net loss of 200 
     doctors out of 35,500 since 2002.
       ``How can the medical society, if you can't agree on the 
     numbers, continue to tout that doctors are leaving'' said 
     Rep. Thomas Tangretti, D-Westmoreland, his voice rising in 
     apparent anger. ``You've run ads saying will the last doctor 
     please turn off the X-ray machine.''
       ``You've been frightening people, particularly senior 
     citizens, and now we find it was all probably wrong-headed 
     and disingenuous,'' Tangretti said, getting louder. ``Before 
     you continue to frighten people about access to health care, 
     you better get your numbers right. It's an outrage.''
       Other lawmakers voiced irritation at his testimony, 
     delivered four days after The Morning Call published new and 
     previously undisclosed figures--some of them from the medical 
     society itself--that make clear doctors are not leaving in 
     large numbers.
       For three years, the doctors lobby has insisted that 
     doctors, particularly specialists who perform high-risk 
     procedures, are leaving the state in droves, putting patient 
     care in jeopardy.
       Among other tactics, the medical society has promoted a 
     list of 1,700 ``disappearing

[[Page 9279]]

     doctors'' as proof there are fewer physicians in 
     Pennsylvania.
       The Morning Call revealed Sunday that new state Insurance 
     Department numbers show doctors have not left the state in 
     waves. There were 35,474 doctors in 2002, as determined by 
     the number who paid their state-mandated supplemental 
     insurance. Now the figure is at least 34,997.
       The newest number includes doctors who have applied to the 
     Insurance Department for a piece of $230 million in state tax 
     dollars recently appropriated to offset their rising 
     malpractice premiums, along with a separate list of doctors 
     who had primary insurance coverage at the end of last year 
     but who haven't yet applied for state money.
       That total doesn't include doctors who might have moved to 
     Pennsylvania in the last year, might not be in Insurance 
     Department records yet, and who might not know the state has 
     money set aside for them.
       In one of several criticisms of The Morning Call's work, 
     the medical society has contended it might be misleading to 
     compare 2002 figures to a list of individual doctors who 
     recently applied for state money and others known to have 
     malpractice insurance at the end of last year. But society 
     officials have not publicly explained why that could be the 
     case.
       The new Insurance Department figures show no appreciable 
     reduction in the number of high-risk specialists, a maximum 
     reduction of 56 out of 4,700 since 2002. The medical society 
     has admitted it has separate statistics that show a reduction 
     of only 16 specialists--defined as neurosurgeons, general 
     surgeons, orthopedic surgeons and ob-gyns--during that time 
     frame.
       ``This a matter of credibility,'' Rep. Nick Micozzie, R-
     Delaware, chairman of the House Insurance Committee, said 
     after the hearing. ``We've been hearing for three years now 
     that doctors are leaving in large numbers and there is a 
     shortage.''
       ``I go into my doctor's office and there's a sign that says 
     ``Call Nick Micozzie to Save Our Doctors,'' he said. ``Well, 
     saving our doctors is a different issue than claiming doctors 
     are leaving in large numbers.''
       In reference to the three-year campaign, Glunk told the 
     committee that anecdotal evidence indicates there aren't 
     enough of some kind of specialists in some parts of the 
     state, and that not enough young doctors are choosing to move 
     to Pennsylvania.
       For three years, the medical society and its associated 
     group, Politically Active Physicians Association, have waged 
     an intensive public relations and lobbying campaign to 
     convince legislators and their constituents that doctors are 
     fleeing the state en masse.
       The effort was triggered by medical malpractice premiums 
     that started soaring in 2001 and continue to climb. Rather 
     than pay prices that doubled seemingly overnight, some 
     doctors did indeed depart, others altered their practices to 
     avoid high-risk procedures.
       As a result, lawmakers have enacted a series of court 
     reforms sought by doctors as a way to drive down the rising 
     premiums. A new cigarette tax raises roughly $230 million a 
     year to help doctors afford malpractice premiums. 
     Applications for that money are being processed now.
       Doctors continue to demand a cap on jury awards on pain and 
     suffering damages in malpractice lawsuits and have threatened 
     to leave the state if they don't get them.
       On Thursday, Glunk told the panel of lawmakers that the 
     disappearing doctors list is not actually a list of doctors 
     who disappeared. It is more of a list of doctors who might 
     have been impacted by rising malpractice rates and who might 
     have retired, moved, or curtailed their practices as a 
     result, he explained.
       The list makes no mention of doctors who have relocated to 
     Pennsylvania since 2002, lawmakers noted.
       ``Naturally people leave their profession. You don't count 
     doctors coming in,'' said Rep. Tony DeLuca, D-Pittsburgh told 
     Glunk. ``If you don't have accurate statistics on the number 
     of doctors, how can we tell? How can we make policy like 
     that?''
       Lawmakers from both parties say the list--created and 
     maintained by Donna Rovito, the wife of an Allentown 
     physician--has been used extensively as a lobbying tool to 
     support doctor claims.
       Democratic House leaders Thursday called for a moratorium 
     on any more medical malpractice reforms until lawmakers 
     ascertain whether doctors are leaving the state in large 
     numbers, and whether the medical society deliberately misled 
     lawmakers.
       ``The data they repeatedly cite, and which served as the 
     basis for legislative action in the last two years, appears 
     to be seriously inaccurate and part of a deceptive 
     campaign,'' said Rep. Mike Veon, D-Beaver, the House Minority 
     Whip. ``We want the real numbers and there should be no 
     further action until the deficiencies of the data are 
     corrected and we know the truth.''

  Mr. Speaker, I reserve the balance of my time.
  The SPEAKER pro tempore. The Chair advises Members that the gentleman 
from Wisconsin (Mr. Sensenbrenner) has 9 minutes remaining, the 
gentleman from Virginia (Mr. Scott) has 6 minutes remaining, and the 
gentleman from Pennsylvania (Mr. Greenwood) has 1 minute remaining.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Arizona (Mr. Shadegg).
  Mr. SHADEGG. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  I rise in strong support of the underlying legislation. I want to 
compliment both the chairman of the Committee on the Judiciary, and the 
Committee on the Judiciary itself, as well as the chairman of the 
Committee on Energy and Commerce, and the Committee on Energy and 
Commerce itself, for bringing this legislation forward. This is 
critically needed legislation.
  We face a crisis in this country in health care because of a runaway 
tort system. But the specific point I want to make goes to the next 
step in this process. Under current law, a law called EMTALA, passed by 
this Congress in 1986, millions of dollars' worth of free health care 
is provided at our Nation's emergency rooms across the country. It is 
provided because we have decided that someone who presents himself to 
an emergency room should not be denied that care, and so they must be 
screened and they must be initially treated and they must be 
stabilized. And I think that is a fair and balanced social policy which 
says that we in this country do not want anyone to go without health 
care; and clearly that is an important, appropriate policy that we have 
adopted.
  But I think there is an unintended consequence of that law. The law 
says that this care must be provided by doctors and hospitals for free 
of these emergency rooms, but it does not provide that they have to 
provide their own malpractice insurance to cover that, and yet the 
current law says if they are sued for malpractice in such 
circumstances, they must pay the damages.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself 30 seconds.
  During the debate, we have talked about how much debate is going on. 
I just point out that this debate is on a closed rule so that we cannot 
offer amendments to the bill. We have to take it or leave it. There are 
a lot of improvements that could be made if we have a full and open 
debate. That is not happening today because the majority passed a 
closed rule prohibiting any amendments to the bill.
  Mr. Speaker, I reserve the balance of my time.
  The SPEAKER pro tempore. The Chair will advise Members that the order 
of closure will be the gentleman from Pennsylvania (Mr. Greenwood) 
followed by the gentleman from Virginia (Mr. Scott) followed by the 
gentleman from Wisconsin (Mr. Sensenbrenner).
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Illinois (Mr. Crane).
  Mr. CRANE. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Health care providers in my district need relief. Doctors, nurses, 
and hospitals all are struggling to shoulder the burden of the 
escalating cost of medical malpractice insurance.
  Many regions of the country have been hit especially hard by this 
medical liability crisis, and doctors are leaving my district in 
suburban Chicago and moving to Wisconsin or Indiana to practice where 
medical malpractice insurance costs significantly less.
  I certainly do not want them to go, but I understand why they are 
leaving or why some are choosing to retire early. The price of medical 
malpractice insurance has made it cost prohibitive for physicians to 
practice. It is not just doctors either. Hospitals, many of which 
struggle every year to keep solvent, have been hit especially hard. I 
am confident that the House will pass H.R. 4280, and I encourage all of 
my colleagues to support it; but it is time for the other body to act 
and pass this bill. Congress's inaction to address the medical 
liability crisis is driving doctors out of all of our districts.
  The time has come to address this problem and pass the HEALTH Act.

[[Page 9280]]



                              {time}  1700

  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Pennsylvania (Mr. Greenwood).
  Mr. SHADEGG. Mr. Speaker, will the gentleman yield?
  Mr. GREENWOOD. I yield to the gentleman from Arizona.
  Mr. SHADEGG. Mr. Speaker, I thank the gentleman for yielding. I 
apologize for the rather disjointed nature of this presentation.
  Mr. Speaker, the point I wanted to make is we under EMTALA require 
doctors and hospitals to provide free health care in our emergency 
rooms. That may be appropriate as public policy, but the unfair context 
is that while forcing them to provide this free care, if they in fact 
are alleged to have committed malpractice, either the hospital or the 
doctor while providing free health care, they are on the hook for that 
alleged malpractice.
  It seems to me only fair that if we are going to force doctors and 
hospitals to provide free health care to anyone who presents at an 
emergency room, then we should either cover the cost of their medical 
liability arising out of that, which I have proposed in an amendment 
and in separate legislation, providing that free EMTALA care would come 
under the Federal Torts Claims Act or we should grant immunity.
  It seems to me to add insult to injury to say to a doctor at a 
hospital, you must provide free health care to anyone who presents at 
your emergency room and you must pay for the substantive cost of that 
health care, but that in addition to that, you must cover the medical 
liability that arises out of it.
  That is in fact driving doctors away from emergency rooms and 
imposing unfair costs on both emergency rooms and emergency room 
doctors, and I hope the Congress will consider that legislation in the 
near future.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield the balance of my time to 
the gentlewoman from Texas (Ms. Jackson-Lee).
  The SPEAKER pro tempore (Mr. Sweeney). The gentlewoman from Texas is 
recognized for 5\1/2\ minutes.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, to the distinguished gentleman 
from Virginia and to my ranking member and colleagues on the floor, 
this reminds me of deja vu and here we go again.
  I am reminded that we were here on the floor of the House not very 
long ago dealing with the catastrophe of medical malpractice insurance 
and the desire to deny access to the courthouse. I am reminded as well 
that we had the good conscience, if you will, to have a vigorous 
debate.
  Now we are on the floor of the House with exactly 1 hour, no 
opportunity for a substitute, it is my understanding, in combined time 
between the Committee on Energy and Commerce and the Committee on the 
Judiciary, two very important committees as it relates to dealing with 
the medical malpractice question.
  We also seemingly are not confronted by the reality of life. More and 
more Americans are uninsured, some 44 million. Today we have spent time 
trying to address the question of whether or not we can insure those 
Americans. Yet we come today with an overall one-shoe-fits-all Federal 
legislative initiative rather than allowing, first of all, the 
possibility that each State address their own concerns.
  This bill, in essence, is a bill that will take away the rights. For 
example, parents who lose a child due to a tragedy like the one in 
North Carolina recently, where the wrong heart and lung were placed in 
a young girl, they do not lose any money, they lose part of their 
souls. But now we are going to tell them that their child was only 
worth $250,000 in noneconomic damages for all of their pain and 
suffering. We are being told we are going to do this to such devastated 
families in order to enable our doctors to keep treating patients.
  Well, let me say this: I would rather stand on the side of those who 
access the courthouse.
  H.R. 4280 calls for a protracted statute of limitations in which a 
plaintiff may file a claim. Such a restrictive statute of limitations 
cuts off legitimate claims. A reduced statute of limitations shortens 
the time that injured patients and their families have to file claims.
  This provision is ultimately designed to eliminate claims for 
diseases with long incubation periods. That means, for example, that if 
a patient contracted HIV-AIDS from tainted blood but the symptoms of 
HIV did not present itself for at least 5 years, which is often the 
case, there would be no remedy that this Congress would allow because 
this enacted 2-year statute of limitations.
  The gentleman from Michigan (Mr. Conyers) and the gentleman from 
Michigan (Mr. Dingell) had an alternative that speaks more to the 
accrual of a right of action. Therefore, a person who upon reasonable 
knowledge would not know that they had contracted a condition such as 
HIV, would still have a right to action.
  The bill before us today also provides arbitrary and discriminatory 
caps on noneconomic damages that will hurt those patients with the most 
serious injuries. Proponents of medical malpractice reform want to 
limit noneconomic damages to $250,000 in the aggregate, regardless of 
the number of parties responsible for a patient's injury and regardless 
of the number of parties against whom an action is brought.
  Noneconomic damages compensate injured patients for very real 
injuries such as the loss of a limb, loss of sight, permanent 
infertility or even the loss of a child. Damage caps have a 
tremendously negative impact on the permanently or catastrophically 
injured person who is more in need of financial protection, for only 
the most seriously injured receive damage awards greater than the cap. 
Even the AMA has testified that caps affect only those cases involving 
severe injury where the victim faces the greatest need for 
compensation.
  I include those remarks in the Record so that I can speak to the 
physicians who are listening today, hopefully to understand that this 
is not a battle with you. This is not a battle between patients and 
physicians. This is not a battle between those of us who oppose caps on 
noneconomic damages and statutory limitations and what is a bad medical 
malpractice bill. This is not a battle.
  What it is to say is, frankly, this. We all have a part in 
contributing to good health care. This medical malpractice legislation 
does not contribute to good health care. What it simply says is those 
who have the least will get the least, primarily when it comes to 
dealing with catastrophic illnesses which may ruin their life forever, 
which provide an economic burden on their caretakers forever, which in 
essence does not provide the necessary punitive measures for those who 
have done wrong.
  We realize that there are good doctors, and we support that. My 
question is, let me have a full study again of all the insurance 
companies who can tell me that their premiums will go down because of 
this legislation.
  We have passed a legislative initiative in Texas, and to defend 
themselves for such a horrible bill, we have had a number of editorials 
saying how things have gotten better. We still have uninsured children 
in Texas, we still have people injured in Texas without the proper 
benefits, and we have not seen a decrease in insurance premiums as 
well.
  This is a bad medical initiative, if that is what it is supposed to 
be. To doctors, we promote all of the legislative initiatives to help 
you be good doctors. We are supportive of decreasing the insurance 
premiums that put you out of business, better Medicaid and Medicare 
regulations, but we are not supportive of a legislative initiative that 
does nothing but tear up the Constitution, undermine our values, and 
does not save lives.
  I ask my colleagues to vote against this.
  Mr. Speaker, I was enormously disappointed with the rule that was 
issued on this bill and call on my colleagues to defeat the underlying 
bill as well. We have a health care crisis on our hands. We need to 
work together in a

[[Page 9281]]

democratic fashion to address it: to improve access to care, to protect 
patients, to ensure that good physicians can afford to continue 
treating those patients, and to decrease frivolous lawsuits. Last year 
in March we fought to defeat a bill, H.R. 5, which sought to reform 
tort law to the detriment of patients, physicians, patients, and 
injured plaintiffs. The underlying identical bill is before us today 
and it seeks to do the same thing. The Ranking Member of the House 
Judiciary Mr. Conyers and Mr. Dingell offered a substitute during the 
Rules Committee hearing that would have ensured that these concerns 
were addressed. Not a single one of those excellent ideas will be even 
considered today.
  What in the name of God and Country is our Democracy coming to when 
on the Floor of the House of Representatives, there is not a single 
chance to debate and vote on one of many ideas that could save lives 
and rescue our floundering health care system?
  I hate the idea of putting a price tag on human life, or a value on 
pain and suffering. However, we all know that malpractice premiums are 
outrageously high in some regions and for some specialties of medicine. 
I understand that some physicians are actually going out of business 
because the cost of practicing is too high and that we run the risk of 
decreasing access to healthcare if we do not find a way to decrease 
malpractice insurance premiums.
  However, it would be doubly tragic if we did compromise the ability 
of patients suffering from medical negligence from seeking recourse in 
our courts, and did not achieve any meaningful decrease in malpractice 
premiums. Therefore, I considered offering three amendments yesterday 
that would require that all malpractice insurance companies make a 
reasonable estimate each year of the amount of money they save each 
year through the reduction in claims brought about by this Act. Then 
they would need to ensure that at least 50 percent of those savings be 
passed down in the form of decreased premiums for the doctors they 
serve.
  I shared this concept with doctors and medical associations down in 
Texas, and they were very enthusiastic, because this amendment would 
ensure that we do what, I am being told, this bill is supposed to do--
lower premiums for doctors.
  Without my provision, this bill could easily end up being nothing 
more than heartbreak for those dealing with loss, and a giant gift to 
insurance companies. Parents who lose a child due to a tragedy like the 
one in North Carolina recently where the wrong heart and lung were 
placed in a young girl--they don't lose any money--they lose a part of 
their souls. We are going to tell them that their child was only worth 
$25,000 in non-economic damages for all of their pain and suffering. We 
are being told that we are going to do this to such devastated 
families, in order to enable our doctors to keep treating patients.
  H.R. 4280 calls for a protracted statute of limitations in which a 
plaintiff may file a claim. Such a restrictive statute of limitations 
cuts off legitimate claims. A reduced statute of limitations shortens 
the time that injured patients and their families have to file claims. 
This provision is ultimately designed to eliminate claims for diseases 
with long incubation periods. That means, for example, that if a 
patient contracted HIV from tainted blood, but the symptoms of HIV did 
not present for at least five years--which often is the case--there 
would be no remedy if Congress enacted a two-year statute of 
limitations.
  Mr. Conyers and Mr. Dingell had an alternative that speaks more to 
the accrual of a right of action. Therefore, a person who, upon 
reasonable knowledge, would not know that they had contracted a 
condition such as HIV, would still have a right of action.
  The bill before us today also provides arbitrary and discriminatory 
caps on non-economic damages that will hurt those patients with the 
most serious injuries. Proponents of medical malpractice reform want to 
limit non-economic damages to $250,000 in the aggregate, regardless of 
the number of parties responsible for a patient's injury and regardless 
of the number of parties against whom an action is brought. Non-
economic damages compensate injured patients for very real injuries--
such as the loss of a limb, the loss of sight, permanent infertility or 
even the loss of a child. Damage caps have a tremendously negative 
impact on the permanently or catastrophically injured who are most in 
need of financial protection for only the most seriously injured 
receive damage awards greater than the cap. Even the AMA has testified 
that caps affect only those cases involving severe injury where the 
victim faces the greatest need for compensation. When damages caps 
leave such victims unable to meet the costs associated with their 
injuries, the government is often left footing the bill with taxpayer 
dollars.
  Non-economic damage caps are unfair to women. Capping non-economic 
damages, while at the same time preserving full compensation for 
economic loss, such as lost wages and lost salary, shamefully devalues 
the worth of homemakers and stay-at-home moms. Moreover, by protecting 
medical device manufacturers specifically, the bill favors the makers 
of those very products--such as the Dalkon Shield and Copper 7 
intrauterine devices--that have caused devastating harm to women.
  Medical malpractice in the United States is a very real problem with 
devastating consequences. We hear about countless medical horror 
stories, whether involving a botched surgery, a mix-up in the medical 
records, an unnecessary amputation, or the discovery of medical objects 
inside patients.
  I offer a few case studies to illustrate the terrible downward trend 
that we can expect with the passage of this ill-crafted bill:
  Sandra Katada of McKinney, Texas: During the birth of Sandra's 
daughter Alexandra, the doctor contorted and stretched Alexandra's 
spine, destroying her nerves and leaving her partially paralyzed. The 
doctor applied so much force that, in addition to the spinal injury, 
which would prove fatal, the baby's elbow was broken and pulled from 
its socket. Some of the damaged spinal nerves were responsible for 
stimulating the growth of her rib cage. But because the nerves were 
damaged, her ribs did not expand, and when the rest of her body grew 
over the next several months she suffocated inside her small rib cage. 
Alexandra died on Valentine's Day, 1994, at age 8-months-old. The 
Katadas's settled the case against the doctor for the insurance 
company's policy limits, $1 million.
  A Dallas Morning News investigation found that two other babies in 
this doctor's care had died in the 3 years before the Katada's and 
another died after their baby died. In one of those cases, by the time 
the parents found out that this doctor had caused their baby's 
injuries, it was too late to go to court because the 2-year statute of 
limitations had run out. All the families complained to the Texas 
Medical Board about this doctor but he is still practicing.
  Dylan Malone of Everett, WA: Dylan's son Ian suffered severe brain 
damage at birth after a doctor used a drug to induce labor that the 
manufacturer explicitly warned should not be used for that purpose. Ian 
cannot hold his head up, suck, swallow or gag properly and requires 16 
hours of nursing care per day. He eats through a feeding tube in his 
abdomen, breathes with a ventilator, takes medication daily to prevent 
seizures and needs a sedative to sleep. The family sued the doctor, who 
already had a number of medical malpractice cases filed against him. 
The Malone case is still pending.
  I will not vote for H.R. 4280, because as it is, it does nothing to 
decrease the premiums our nation's physicians are burdened with. It 
does nothing to decrease the number of frivolous lawsuits. It does 
nothing to decrease the amount of malpractice being inflicted upon the 
American people, by bad doctors who are jeopardizing the lives of their 
patients, and driving up the insurance costs of their colleagues. And 
it does nothing to protect the rights of those suffering in the wake of 
an act of medical negligence. H.R. 4280 does nothing to respond to 
these problems of rampant medical malpractice. I reiterate that the 
substitute offered by Mr. Conyers and Mr. Dingell at the hearing before 
the Rules Committee was a more prudent alternative. Our colleagues on 
the other side of the aisle wish to shove this bill down the feeding 
tubes of the helpless and sickly patients who sit and suffer from a 
health care system that seeks to pad the pockets of insurance 
companies.
  I strongly oppose H.R. 4280 and I urge my colleagues to join me.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Texas (Mr. Burgess).
  Mr. BURGESS. Mr. Speaker, I thank the chairman for yielding me time.
  Mr. Speaker, the gentlewoman from Texas is right. We did do a similar 
bill statewide in Texas and it passed last September, and it really has 
provided physicians in the State of Texas a significant amount of 
relief from the high cost of liability premiums.
  My last year in active practice was 2002, and I paid $19,000 a year 
in obstetrics and gynecology for that privilege. If I had bought that 
insurance in 2003, it would have increased to $45,000. This year, had I 
purchased that same insurance policy, it would have been back down to 
$25,000, obviously a significant increase.
  But we really are not talking about the cost of a liability premium 
for a

[[Page 9282]]

doctor, we are talking about the embedded cost of an unfair medical 
justice system on our entire medical system, and we can no longer 
afford to pay that price.
  A study done at Stanford University in 1996 showed that if you remove 
the cost of defensive medicine from Medicare, you would save $50 
billion a year. That would pay for our prescription drug benefit, 
whether the CBO or the OMB does the figures.
  Mr. GREENWOOD. Mr. Speaker, I yield myself the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Pennsylvania.
  The SPEAKER pro tempore. The gentleman from Pennsylvania is 
recognized for 2 minutes.
  Mr. GREENWOOD. Mr. Speaker, I would like to read from two letters. 
The first is from Engel, Smith & Associates, an obstetrics and 
gynecology practice, a letter written to their patients.
  ``It is with great sadness that we are writing to inform you of the 
plan to close in its present configuration the Engle, Smith & 
Associates obstetrics and gynecology practice. We have diligently tried 
over the past several months to find an alternative solution as we 
struggle with this decision. Unfortunately, the practice environment 
for physicians in our specialty has become so difficult that we have no 
choice but to dramatically change the way in which we provide care.
  ``We, like many of our colleagues in high-risk specialties such as 
obstetrics, have a crisis situation because our malpractice insurance 
premiums have more than doubled in the past 2 years. These increases 
are being driven primarily by skyrocketing jury awards in Pennsylvania, 
which have been forcing both insurance companies and physicians out of 
business.''
  Here is the impact on patients, a letter to me.
  ``I am a Pennsylvania native. I was born and raised in the 
Philadelphia area, an area that used to be known for excellent medical 
care. Eight months ago, I again found a wonderful OB-GYN office. The 
doctors are wonderful, respectful and well-educated and overall just 
great. They delivered my beautiful baby girl for me, and I could not 
have been happier with their care. I referred my sister, who is 
currently pregnant and due in a few short weeks. She too, is satisfied 
with them.
  ``Two weeks ago we were outraged to discover that they were closing 
the doors at the end of May 2002. My sister, who has been going to 
their office for all her prenatal care visits, cannot even have her 
after-delivery exam by the doctor who delivers her first child. I will 
not be able to return to them for subsequent health care or even normal 
GYN care.
  ``This is an outrage. It is also the second physician's office I have 
been to in the last couple of years that has been forced to close due 
to medical liability costs. Another office that I was aware of closed 
as well for the same reason. I cannot even switch to see them, because 
they no longer exist within our State. I do not know who I can go to 
even now. No other OB-GYN physicians practice in my area anymore.''
  Mr. Speaker, this is the face of the medical malpractice crisis. This 
is the bill that will resolve that crisis. We believe that this 
legislation will solve the crisis in the near term for malpractice 
insurers, for doctors and for patients, and, in the long run, for 3.9 
million Americans, give them health care that they do not have today.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my 
time.
  The SPEAKER pro tempore. The gentleman from Wisconsin is recognized 
for 4 minutes.
  Mr. SENSENBRENNER. Mr. Speaker, during the course of the debate we 
have heard a string of red herrings from people who do not wish this 
bill to pass. I would like to rebut those from the study that the 
General Accounting Office made on the whole topic of our medical 
liability crisis.
  First, as the gentleman from Pennsylvania (Mr. Greenwood) has 
eloquently stated, patient access to care is being harmed. He recounted 
the case of a pregnant woman who went to at least two OB/GYN practices 
to get a doctor to deliver her baby and was told that as a result of 
the medical liability crisis, they were shutting down the doors to 
their practice.
  The GAO confirmed instances in the five States selected for study 
where actions taken by physicians in response to malpractice pressures 
have reduced access to services affecting emergency surgery and newborn 
deliveries. When the baby comes, you cannot wait. When someone has an 
accident and needs emergency surgery, you cannot wait. And if the 
malpractice insurance crisis closes down those practices, people are 
going to be harmed, and they will die, and this bill will stop that.
  Secondly, doctors do practice defensive medicine. The GAO report 
found that in response to rising premiums, ``the fear of litigation 
research indicates that physicians practice defensive medicine in 
certain clinical situations, thereby contributing to health care 
costs.''
  The gentleman from Texas (Mr. Burgess) said that if unnecessary 
defensive medicine does not have to be practiced by reforming our 
liability laws, Medicare alone will save $50 billion a year, which is 
more than enough to pay for the prescription drug benefit, whether it 
is by the GAO study or the OMB study.
  Third, insurers are not to blame for skyrocketing premiums. The 
gentleman from Ohio (Mr. Brown) seemed to think they are.

                              {time}  1715

  But the GAO found that insurers are not to blame. The report states 
that insurer ``profits are not increasing, indicating that insurers are 
not charging and profiting from excessively high premium rates,'' and 
that ``in most States the insurance regulators have the authority to 
deny premium rate increases they deem excessive.''
  Fourth, rising litigation awards are the problem, not insurer 
investments. What did the GAO say? The GAO found that losses on medical 
malpractice claims which make up the largest part of insurers' costs 
appear to be the primary driver of rate increases in the long run.
  ``Since 1998, insurers' losses on medical malpractice claims have 
increased rapidly in some States. However, none of the studied 
companies experienced a net loss on investments, at least through 2001, 
the most recent year such data were available. Additionally, almost no 
medical malpractice insurers overall experienced net investment losses 
from 1997 to 2001.'' So much for that red herring.
  Finally, liability reform does have a real impact. The GAO concludes 
that data indicate that rates of growth in malpractice premiums and 
claims payments have been slower on average in States that enacted 
certain caps on damages for pain and suffering, referred to as 
noneconomic damage caps, than in States with more limited reforms and 
that average per capita payments for malpractice claims against all 
physicians tended to be lower on average in States with noneconomic 
damage caps than in States with limited reforms.
  This bill is a good one, and it ought to be passed.
  Ms. SCHAKOWSKY. Mr. Speaker, I rise today in opposition to out-of-
control medical malpractice premiums but also in opposition to H.R. 
4280. Once again, we are being asked to vote on a bill that claims to 
be a solution to a very real problem but which will simply not do the 
job of lowering premiums. Once again, we are being asked to vote on 
legislation that ignores the major component in the medical malpractice 
insurance crisis--insurance.
  A study of the medical malpractice situation in my State of Illinois 
found last year that there was little, if any, correlation between 
medical sea -HMOOsmalpractice payments and medical malpractice 
premiums. The Americans for Insurance Reform report found that the 
amount of jury awards and settlements has actually declined since 1991, 
below the rate of medical inflation. In constant dollars, the amount of 
medical malpractice jury awards and settlements per doctor has 
decreased over the past decade in Illinois.
  As providers in my State know all too well, their medical malpractice 
premiums are going in the opposite direction. Instead of tracking 
payouts, they are tracking economic conditions and insurance company 
investment decisions. Imposing arbitrary caps on non-economic damages--
which would especially limit

[[Page 9283]]

potential payments to injured infants and senior citizens--is not the 
answer when the problem is poor investment choices by insurance 
companies and economic conditions.
  As a member of the Energy and Commerce Committee, I had the 
opportunity to participate in hearings on H.R. 5, last year's medical 
malpractice bill. We never heard a medical malpractice insurer testify 
that passage of that bill would lower premiums or that the Federal 
government should even be allowed to track the effects on medical 
malpractice premiums if H.R. 5 were to pass. That failure was no 
surprise given multiple statements made by medical malpractice 
insurance company officials before State legislatures around the 
country, that tort reform will not lower rates. Even Sherman Joyce, 
president of the American Tort Reform Association, has said that ``We 
wouldn't tell you or anyone that the reason to pass tort reform would 
be to reduce insurance rates.'' Victor Schwartz, general counsel of 
ATRA, has said, ``(M)any tort reform advocates do not contend that 
restricting litigation will lower insurance rates, and ``I've never 
said that in 30 years.''
  Caps won't make medical malpractice premiums affordable but there are 
other proposals that would make a real difference in providing 
affordable coverage. As a member of the House Medical Malpractice 
Crisis Task Force, I had hoped that we would take the opportunity to 
explore those opportunities instead of being presented with the same 
bill that we voted on last year, the same bill that the insurance 
industry itself says won't lower premiums.
  Here are many ideas that I believe are worthy of consideration but 
that, unfortunately, are not included in H.R. 4280. We know that 
insurance reform in California requiring a premium rollback and 
improving review had a positive impact in lowering medical malpractice 
premiums--after tort reform did not. We could have created a Commission 
on Medical Malpractice Insurance to investigate the real causes for 
premium increases and consider solutions such as mandatory loss-ratio 
requirements, experience rating, and a Federal reinsurance mechanism. 
We could have established a certification mechanism to make sure that 
cases are meritorious, expand Rule 11 sanctions for anyone who 
falsifies information as part of that process, and encourage 
arbitration while requiring that savings are passed through by insurers 
in the form of lower premiums. We could have repealed the McCarran-
Ferguson Act that shields medical malpractice insurers from Federal 
antitrust laws. We could have provided a tax deduction to help health 
care providers and professionals faced with sharp premium increases.
  Instead of considering those initiatives, we are being asked to once 
again pass legislation that restricts the rights of injured patients 
and their families to seek legal remedies, not just against doctors, 
but against HMOs and other insurers, nursing homes, medical labs, drug 
companies, medical device manufacturers and others. For the first time, 
the Federal government would intrude on what has always been a State 
authority to take away consumer rights. Yet, the insurance industry 
itself refuses to say whether doing so will have the effect of lowering 
rates. It is the wrong answer to a very real problem.
  In the future, I hope that we will be given the chance to look at 
ways to address insurances industry practices and reduce the incidences 
of medial malpractice by improving health care quality. In the 
meantime, we should reject this bill.
  Mr. STARK. Mr. Speaker, I rise in strong opposition to H.R. 4280, 
legislation that would undermine the right of patients and their 
families to seek appropriate compensation and penalties when they, or a 
loved one, are harmed or even killed by an incompetent health care 
provider.
  At best, this bill is a wrong-headed approach to the problem of 
rising malpractice health insurance costs. At worst, it is designed to 
protect bad doctors, HMOs, and other health care providers from being 
held accountable for their actions. Either way, this bill is harmful to 
consumers and should be defeated.
  The most ludicrous aspect of this debate today is the fact that it is 
completely unnecessary. The House already passed this exact same 
legislation last March and there is no need for us to be here debating 
it again.
  The only reason that Republicans are bringing up this bill today is 
that it is ``Cover the Uninsured Week'' and they have no real proposals 
to help cover the uninsured. So, they are trotting out medical 
malpractice reform so they can have another vote that doctors 
appreciate and they can again blame the Senate for not taking action on 
the legislation. It is political showmanship pure and simple--it has no 
other meaning.
  This bill is identical to H.R. 5 which was passed last year, so if my 
comments look familiar, it is because I am raising the exact same 
points in opposition.
  The Republican Leadership has once again brought forth a bill that 
favors their special interests at the expense of patients and quality 
health care. Doctors, hospitals, HMOs, health insurance companies, 
nursing homes, and other health care providers would all love to see 
their liability risk reduced. Unfortunately, this bill attempts to 
achieve that goal solely on the backs of America's patients. I said, 
``attempts to achieve that goal'' intentionally.
  Despite the rhetoric from the other side, there is absolutely nothing 
in H.R. 4280 that guarantees a reduction in medical malpractice 
premiums. There is not one line to require that the medical malpractice 
insurance industry--in exchange for capping their liability--return 
those savings to doctors and other providers they insure through lower 
malpractice premiums. To quote one of many economists on this matter, 
Frank A. Sloan, an economics professor from Duke, recently said, ``If 
anyone thinks caps on pain and suffering are going to work miracles 
overnight, they're wrong.'' In fact, the outcome of this bill could 
have zero impact on lowering malpractice premiums and instead go into 
the pocketbooks of the for-profit medical malpractice industry. Of 
course, the bill's proponents avoid mentioning that very real 
possibility.
  Proponents of this bill also like to say that they are taking 
California's successful medical malpractice laws and putting them into 
effect for the Nation. This is also hyperbole. California did not 
simply institute a $250,000 cap on medical malpractice awards. The much 
more important thing California did was to institute unprecedented 
regulation of the medical malpractice insurance industry. This 
regulation limits annual increases in premiums and provides the 
Insurance Commissioner with the power and the tools to disapprove 
increases proposed by the insurance industry. It is this insurance 
regulation that has maintained lower medical malpractice premiums. Yet, 
the bill before us does absolutely nothing to regulate the insurance 
industry at all.
  Supporters of this bill would have you believe that medical 
malpractice lawsuits are driving health care costs through the roof. In 
fact, for every $100 spent on medical care in 2000, only 56 cents can 
be attributed to medical malpractice costs--that's one half of one 
percent. In addition, a recent report by the Congressional Budget 
Office highlights the same fact. Specifically the report states, 
``Malpractice costs amounted to an estimated $24 billion in 2002, but 
that figure represents less than 2 percent of overall health care 
spending. Thus, even a reduction of 25 percent to 30 percent in 
malpractice costs would lower health care costs by only about 0.4 top 
0.5 percent, and the likely effect on health insurance premiums would 
be comparably small.'' So, supporters are spreading false hope that 
capping medical malpractice awards will reduce the costs of health care 
in our country by any measurable amount. It won't.
  What supporters of this bill really do not want you to understand is 
how bad this bill would be for consumers. The provisions of this bill 
would prohibit juries and courts from providing awards they believe 
reasonably compensate victims for the harm that has been done to them.
  H.R. 4280 caps non-economic damages. By setting an arbitrary $250,000 
cap on this portion of an award, the table is tilted against seniors, 
women, children, and people with disabilities. Medical malpractice 
awards break down into several categories. Economic damages are awarded 
based on how one's future income is impacted by the harm caused by 
medical malpractice. There are no caps on this part of the award. But, 
by capping non-economic damages, this bill would artificially and 
arbitrarily lower awards for those without tremendous earning 
potential. This means that a housewife or a senior would get less than 
a young, successful businessman for identical injuries. Is that fair? I 
don't think so.
  The limits on punitive damages are severe. Punitive damages are 
seldom awarded in malpractice cases, but their threat is an important 
deterrent. And, in cases of reckless conduct that cause severe harm, it 
is irresponsible to forbid such awards.
  The issue of rising malpractice insurance costs is a real concern. I 
support efforts by Congress to address that problem. That is why I 
would have voted for the Democratic alternative legislation that Reps. 
Conyers and Dingell brought to the Rules Committee last night. Unlike 
H.R. 4280, the Dingell/Conyers alternative would not benefit the 
malpractice insurance industry at the expense of America's patients. 
Instead, it addresses the need for medical malpractice insurance 
reform--learning from the experience of California--to rein in 
increasing medical malpractice premiums. Rather than enforcing an 
arbitrary $250,000 cap, the bill makes reasonable tort

[[Page 9284]]

reforms that address the problems in the malpractice arena--penalties 
for frivolous lawsuits and enacting mandatory mediation to attempt to 
resolve cases before they go to court. It also requires the insurance 
industry to project the savings from these reforms and to dedicate 
these savings to reduced medical malpractice premiums for providers. 
The Dingell/Conyers bill (H.R. 1219) is a real medical malpractice 
reform bill that works for doctors and patients alike.
  The Democratic alternative bill is such a good bill that the 
Republican leadership refused to let it be considered on the House 
floor today. They were afraid that if Members were given a choice 
between these two bills, they would have voted for the Democratic bill. 
Once again the House Republican leadership has used their power to 
control the rules to stymie democratic debate.
  Medical malpractice costs are an easy target. My Republican 
colleagues like to simplify it as a fight between America's doctors and 
our Nation's trial lawyers. That is a false portrayal. Our medical 
malpractice system provides vital patient protection.
  The bill before us drastically weakens the effectiveness of our 
Nation's medical malpractice laws. I urge my colleagues to join me in 
voting against this wrong-headed and harmful approach to reducing the 
cost of malpractice premiums. It is the wrong solution for America's 
patients and their families.
  Mr. KIND. Mr. Speaker, my home State of Wisconsin has sensible 
medical malpractice laws that make the State attractive to doctors and 
safe for patients. The components of this successful law include a cap 
on non-economic damages of $442,000, which is indexed annually for 
inflation; a requirement that all providers carry malpractice 
insurance; and a victims' compensation fund.
  The victims' compensation fund is a unique entity that has served 
both patients and health care providers well. The fund operates by 
collecting contributions from Wisconsin health care providers and 
paying the victims once an award has been determined. The physicians 
are liable only for the first $1 million in an award. If the award 
exceeds $1 million, the compensation fund will pay the remainder of the 
award. For several years now, this system has served the State well. 
Like many of my colleagues, I believe that we need sensible malpractice 
reform, and were the bill before us today similar to Wisconsin's 
system, I would be proud to support it.
  Unfortunately, H.R. 4280 is vastly different from Wisconsin law and 
goes too far in defending negligence and not far enough in protecting 
patients. The legislation goes beyond medical malpractice law by 
including provisions regarding pharmaceutical and medical devices and 
completely exempts from liability medical device makers and 
distributors as well as pharmaceutical companies, as long as the 
product complies with FDA standards. These provisions would have no 
effect on medical malpractice insurance rates. Instead, they would 
leave victims with little recourse and render them unable to hold 
pharmaceutical companies and the makers of defective medical products 
accountable for faulty or unsafe products.
  Another problem with H.R. 4280 is that it overrides some State laws. 
While the bill would not override Wisconsin's own cap on non-economic 
damages, it would supersede our State laws regarding statute of 
limitations, attorney's fees, and the criteria for punitive damages. 
This bill is a one-size-fits-all solution that is not right for 
Wisconsin.
  The successful components of Wisconsin's medical malpractice laws 
could be the basis for a much better bill. Wisconsin law protects 
patients and keeps physicians in business. These laws are threatened, 
however, by the current proposal. Therefore, I oppose H.R. 4280 and ask 
my colleagues to defeat the bill, revisit the issue, and create a more 
sensible plan that will protect patients and help doctors.
  Mrs. BIGGERT. Mr. Speaker, I rise today in strong support of H.R. 
4280, the HEALTH Act.
  My home State of Illinois is in the midst of a crisis. Will County, 
part of which I represent, no longer has any practicing neurosurgeons. 
A recent survey found that 11 percent of OB/GYNs no longer practice 
obstetrics in Illinois. And more than half of OB/GYNs in the State are 
considering dropping their obstetrics practice entirely in the next two 
years due to medical liability concerns.
  Women and children are the first to suffer in a crisis like this. As 
a mother and a grandmother, I don't want to see pregnant women driving 
to another State because they can't find an OB-GYN in their own area. I 
don't want to see injured children transported miles away from their 
homes because there are no pediatric neurosurgeons left to treat head 
injuries. And I don't want to see health insurance premiums climb so 
high that employers can no longer afford to provide benefits to their 
workers. We need reform and we need it now.
  Mr. STENHOLM. Mr. Speaker, I rise in strong support of H.R. 4280. 
Health care costs have been increasing dramatically over the past 
decade, while insurance has become prohibitively expensive for over 40 
million Americans.
  There are a number of factors which have contributed to the 
skyrocketing cost of health care, and the costs associated with medical 
malpractice are one factor.
  This Country's tort system encourages litigation and large awards in 
medical malpractice suits, which has led to high malpractice insurance 
rates and increased health care costs through the practice of defensive 
medicine.
  Last year, my state of Texas enacted reforms of our medical 
malpractice system in order to avert a growing health crisis in the 
Texas health-care system. Too many lawsuits against health-care 
providers were driving up the cost of practicing medicine, resulting in 
reduced access to affordable health care.
  There are early signs that the reforms enacted in Texas have helped 
improve access to affordable health care. Essentially, every doctor in 
Texas is either paying less malpractice premiums today or avoiding 
scheduled increase in premiums.
  The bill before us today contains the same proven reforms that will 
translate directly into increased access to affordable health care for 
all Americans.
  Without Federal legislation, the exodus of physicians from the 
practice of medicine will continue, especially in high-risk 
specialties, and patients across the country will find it increasingly 
difficult to obtain affordable health care.
  In rural areas, we are particularly sensitive to the impact 
malpractice insurance costs have in discouraging physicians from 
locating in rural communities, leaving residents without health care.
  Here in Washington, if an obstetrician decides to stop delivering 
babies because the malpractice insurance costs are too great, the 
yellow pages will still list hundreds of other choices of physician 
care for expectant parents. In rural communities, the same physician 
decision may well mean that young couples must entirely uproot and 
relocate to urban centers just so they can have a family.
  The ultimate result of this legislation will be greater protections 
for quality health care, keeping precious health care dollars in direct 
care rather than feeding our legal system, and buttressing access to 
care for all Americans.
  Medical malpractice reform isn't a magic bullet that will solve the 
problems of skyrocketing health care costs by itself, but it is one 
part of the larger process of reforming our health care system to 
control costs and improve access to health care.
  Ms. HARMAN. Mr. Speaker, I am a strong supporter of California's 
Medical Injury Compensation Reform Act--or MICRA. With it, California 
charted a bold and creative course toward responsible medical 
malpractice reform.
  In my view, the entire country would do well to follow California's 
lead, and it makes sense to have Federal legislation on the subject. 
But this particular bill includes the very same flaws contained in 
legislation I opposed last year--and I cannot support it.
  H.R. 4280 is overly broad, and the cap on punitive and noneconomic 
awards is not indexed and does not reflect its current value.
  While H.R. 4280 adopts the structure of MICRA, it is weighed down by 
restrictions on certain causes of action against HMOs, nursing homes, 
and insurance companies--areas in which California has enacted 
significant protections for patients. And the $250,000 cap on punitive 
and noneconomic awards must be adjusted upward.
  In the past, I voted for other medical liability legislation. I did 
so with the hope and expectation that improvements would be made in 
conference with the Senate to narrow its egregious provisions or that, 
in re-introducing the bill, these changes would be made.
  Mr. Speaker, once again the closed process by which we are 
considering medical malpractice reform belies any desire by the 
majority to make the improvements I and many others believe are 
necessary.
  As the daughter and sister of medical doctors, I understand the 
chilling affect unlimited medical liability awards have on the practice 
of medicine.
  But I cannot support H.R. 4280 in its present form, and I urge the 
leadership to postpone a vote on this legislation to open up what has 
thus far been a closed process and incorporate the ideas of members 
like myself who support common-sense medical liability reform.
  Medical professionals should be able to practice in a climate of 
certainty, and patients should be charged reasonable rates for quality 
care. This is what I support for every community in the country. This 
is not what H.R. 4280, in its present form, delivers.

[[Page 9285]]


  Mr. DINGELL. Mr. Speaker, what we are witnessing today is a sorry 
spectacle. We are voting on the same bill the House already voted on a 
little over a year ago. The one difference is that there is a new bill 
number. And, in those 14 months that have passed, our Republican 
colleagues have not changed one line in their bill to respond to the 
problems of increasing insurance costs to the doctors while protecting 
injured patients.
  Instead, they are sticking with the same legislation, legislation 
they know will not pass the Senate. A bill they know will trample on 
the rights of legitimate patients, and will provide unprecedented 
protections to HMOs, the real beneficiaries of this legislation. This 
legislation is the exact opposite of the Patients' Bill of Rights, 
which would have provided real protections to doctors and patients 
alike in the struggle against cookie-cutter medicine foisted upon them 
by HMOs, if the Republicans had not successfully defeated it.
  Let's be clear, this Republican bill does nothing to end frivolous 
lawsuits, just responsible ones. The bill limits awards for honest 
claims. It imposes new hurdles on aggrieved patients. And the bill does 
nothing to address the real problem--skyrocketing insurance premiums 
sending profits directly into the coffers of those companies.
  I would like to point out that this bill is brought up during ``Cover 
the Uninsured Week.'' To say that shielding HMOs from lawsuits will 
help cover the uninsured is a huge stretch for even the most vivid 
imagination.
  If the Republican leadership was really interested in helping those 
without healthcare insurance, they would take up legislation like the 
bills democrats introduced today--the FamilyCare Act and the Medicare 
Early Buy-in--and build upon existing successful insurance programs to 
give families dependable, affordable coverage. And they would take up 
the Small Business Health Insurance Promotion Act which targets small 
businesses with real subsidies to purchase solid insurance products.
  Democratic proposals take us forward, providing meaningful coverage 
without trampling the rights of consumers, eroding protections, or 
causing millions to lose their existing coverage. The Republican bill, 
and the other bills we will see this week, pay lip service to helping 
consumers, while richly rewarding the health insurance company allies.
  Mr. SANDLIN. Mr. Speaker, I rise today just as I did almost exactly 
14 months ago in strong opposition to the so-called HEALTH Act. Of 
course, today, we are spending the valuable time and limited resources 
of the American people debating the HEALTH Act of 2004, which, 
ironically, is precisely the same--virtually word-for-word--as the 
HEALTH Act of 2003, legislation this House already passed.
  Mr. Speaker, it is as if the leadership of this House is being guided 
by the wisdom of that great American philosopher, Yogi Berra, who once 
said, ``It's deja vu all over again.'' Apparently, the Republican 
leadership of the House is at a loss as to how to fix the very real 
problems our nation is facing, so we find ourselves here in the 
People's House deliberating legislation that we have already considered 
and passed.
  I don't know about the rest of the Members of this House, but I am 
pretty confident that my constituents in East Texas would consider our 
action on this flawed legislation to be a profound waste of time and 
money even in the best of times.
  However, Mr. Speaker, these are not the best of times for our Nation. 
The fact is the United States is facing difficult times at home and 
abroad. Today, as a Nation, we have 135,000 military personnel on the 
ground in Iraq fighting a shadowy and lethal insurgency and struggling 
to bring stability to a troubled part of the globe. The United States 
remains in serious danger of terrorist attacks at home with 
vulnerabilities in our ports and other infrastructure in desperate need 
of improved security. Many of our first responders--the very front line 
of defense for our hometowns--lack interoperable communications and 
other resources critical to their success.
  Mr. Speaker, today, almost 9 million Americans are unemployed, 
including almost 3 million manufacturing jobs that have been lost 
during the past three years. Our Nation has accumulated a national debt 
of over $7 trillion--more and more of which is owned to foreign 
nations, including China. Despite our burgeoning debt, the House 
Republican leadership refuses even to acknowledge a problem, refuses to 
adopt sensible ``pay-as-you-go'' rules that recognize the very real 
cost of both spending increases and tax cuts, and insists on budgets 
with larger and larger deficits, including a deficit in excess of $360 
billion in FY 2005 alone.
  Mr. Speaker, as we complete our work during ``Cover the Uninsured 
Week,'' almost 44 million Americans--15 percent of all Americans--have 
no health insurance. That number includes almost 8 million children. 
Almost 44 million Americans have no health insurance, despite the fact 
that the vast majority of them have full-time jobs.
  So, Mr. Speaker, we have a health care crisis in this country that 
demands a solution. Nevertheless, to paraphrase President Reagan, 
``here we go again.'' Instead of working on real solutions to cover the 
uninsured and to solve the many other very real and immediate problems 
the country faces, today, we are spending the People's time and money 
to consider again legislation we have already passed.
  Mr. Speaker, our nation's health care providers--our doctors, our 
nurses, our hospitals and nursing homes--are confronting skyrocketing 
medical malpractice insurance premiums. They need relief now. What they 
don't need is the warmed over illusory promise of relief that the 
HEALTH Act represents.
  The HEALTH Act will not provide the relief American physicians, 
hospitals and other health care providers need. It didn't do anything 
to reduce escalating medical liability insurance premiums when we 
passed it last March; legislation like it has not done anything to 
reduce premiums in the many states that already have enacted damage 
caps; and it will not magically result in reduced premiums if it passes 
the House again today.
  The simple fact is that claims from the Republican leadership that 
limiting liability for medical negligence will cure the healthcare cost 
crisis are without merit. Focusing solely on limiting malpractice 
liability, without insurance reform, does nothing to reduce the ever 
increasing costs of medical malpractice insurance. Damage caps such as 
those in H.R. 4280 do accomplish one thing: they boost insurers' 
profits. With damage caps, malpractice insurers win at the expense of 
physicians, nurses, hospitals and other health care providers.
  Mr. Speaker, last year, after we last considered the HEALTH Act, my 
home state of Texas enacted comprehensive tort ``reform'' legislation 
strikingly similar to the HEALTH Act we considered and passed in March 
2003 and that we consider again today. During the long debate on that 
legislation, proponents of the damage cap legislation repeatedly 
assured opponents that imposition of liability limitations would lead 
to dramatic medical liability insurance premium decreases.
  Not surprisingly, however, the imposition of damage caps did not have 
the predicted effect. To the contrary, all but one medical malpractice 
insurance carriers in Texas proposed increases in physician premiums. 
Consequently, malpractice insurance premiums for physicians are 
reported to have risen an average of 12 percent statewide despite the 
damage caps. For Texas hospitals and nursing homes, the news was even 
worse--an average proposed increase of 20 percent. Moreover, the only 
carrier reported to offer reduced premiums provided a rate reduction 
that fell far short of even recapturing the dramatic premium increases 
it imposed on physicians during the past three years.
  In Texas, as in other states with caps, the evidence does not support 
the rhetoric; those who suggest the HEALTH Act or its ilk as a panacea 
simply fail to make their case. Clearly, old line thinking and the 
``reform'' embodied in the HEALTH Act will not cure what ails the 
system and will not reduce premiums.
  Mr. Speaker, 14 months ago, I stood on the floor of this House and 
called on my colleagues to stand up for the doctors and stand up for 
the hospitals. Because the House Republican leadership has seen fit to 
conduct debate on that same legislation, I suppose I am on solid ground 
reiterating what I said then.
  Mr. Speaker, malpractice premiums are choking America's physicians, 
and H.R. 4280 is nothing but a sham because H.R. 4280 does not mention 
one time, from front to back, soup to nuts, does not ever even mention 
malpractice premiums. We need to do something about those premiums for 
the doctors. We need to do it now. We need to do it today. H.R. 4280 
will not do it.
  And how about frivolous lawsuits? Frivolous lawsuits need to be 
stopped. If a suit is filed with no basis in law or in fact, it should 
be dismissed at the cost of the plaintiff, and he plaintiff should be 
sanctioned. But what does H.R. 4280 say about frivolous lawsuits? It 
does not say one thing. That is a shame. That is outrageous.
  We are only talking about benefits for insurance companies. We are 
talking about caps. The only people protected are insurance carriers. 
The only people celebrating today are executives in tall buildings 
owned by insurance companies.
  H.R. 4280 is not good for doctors; it is not good for hospitals; it 
is not good for patients. Let us stand up for them. Let us do the right 
thing.

[[Page 9286]]

  Mr. Speaker, the HEALTH Act was not progress in March 2003, and it's 
not progress now.
  Apparently, the House Republican leadership wants to prove that Yogi 
Berra was wrong when he said, ``The future ain't what it used to be.'' 
In the U.S. House of Representatives, the future appears to be exactly 
what it used to be. And that's a real shame and a tragic disservice to 
the People who sent us to this great House.
  I urge my colleagues to vote ``no'' on H.R. 4280.
  Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Sweeney). All time for debate has 
expired.
  Pursuant to House Resolution 638, the bill is considered read for 
amendment and the previous question is ordered.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.


               Motion to Recommit Offered by Mr. Conyers

  Mr. CONYERS. Mr. Speaker, I offer a motion to recommit.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. CONYERS. Yes, I am.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. Conyers moves to recommit the bill H.R. 4280 to the 
     Committee on the Judiciary and the Committee on Energy and 
     Commerce with instructions to report the same back to the 
     House forthwith with the following amendments:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Medical 
     Malpractice and Insurance Reform Act of 2004''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.

        TITLE I--LIMITING FRIVOLOUS MEDICAL MALPRACTICE LAWSUITS

Sec. 101. Statute of limitations.
Sec. 102. Health care specialist affidavit.
Sec. 103. Sanctions for frivolous actions and pleadings.
Sec. 104. Mandatory mediation.
Sec. 105. Limitation on punitive damages.
Sec. 106. Use of savings to benefit providers through reduced premiums.
Sec. 107. Definitions.
Sec. 108. Applicability.

   TITLE II--INDEPENDENT ADVISORY COMMISSION ON MEDICAL MALPRACTICE 
                               INSURANCE

Sec. 201. Establishment.
Sec. 202. Duties.
Sec. 203. Report.
Sec. 204. Membership.
Sec. 205. Director and staff; experts and consultants.
Sec. 206. Powers.
Sec. 207. Authorization of appropriations.

        TITLE I--LIMITING FRIVOLOUS MEDICAL MALPRACTICE LAWSUITS

     SEC. 101. STATUTE OF LIMITATIONS.

       (a) In General.--A medical malpractice action shall be 
     barred unless the complaint is filed within 3 years after the 
     right of action accrues.
       (b) Accrual.--A right of action referred to in subsection 
     (a) accrues upon the last to occur of the following dates:
       (1) The date of the injury.
       (2) The date on which the claimant discovers, or through 
     the use of reasonable diligence should have discovered, the 
     injury.
       (3) The date on which the claimant becomes 18 years of age.
       (c) Applicability.--This section shall apply to any injury 
     occurring after the date of the enactment of this Act.

     SEC. 102. HEALTH CARE SPECIALIST AFFIDAVIT.

       (a) Requiring Submission With Complaint.--No medical 
     malpractice action may be brought by any individual unless, 
     at the time the individual brings the action (except as 
     provided in subsection (b)(1)), it is accompanied by the 
     affidavit of a qualified specialist that includes the 
     specialist's statement of belief that, based on a review of 
     the available medical record and other relevant material, 
     there is a reasonable and meritorious cause for the filing of 
     the action against the defendant.
       (b) Extension in Certain Instances.--
       (1) In general.--Subject to paragraph (2), subsection (a) 
     shall not apply with respect to an individual who brings a 
     medical malpractice action without submitting an affidavit 
     described in such subsection if, as of the time the 
     individual brings the action, the individual has been unable 
     to obtain adequate medical records or other information 
     necessary to prepare the affidavit.
       (2) Deadline for submission where extension applies.--In 
     the case of an individual who brings an action for which 
     paragraph (1) applies, the action shall be dismissed unless 
     the individual (or the individual's attorney) submits the 
     affidavit described in subsection (a) not later than 90 days 
     after obtaining the information described in such paragraph.
       (c) Qualified Specialist Defined.--In subsection (a), a 
     ``qualified specialist'' means, with respect to a medical 
     malpractice action, a health care professional who is 
     reasonably believed by the individual bringing the action (or 
     the individual's attorney)--
       (1) to be knowledgeable in the relevant issues involved in 
     the action;
       (2) to practice (or to have practiced) or to teach (or to 
     have taught) in the same area of health care or medicine that 
     is at issue in the action; and
       (3) in the case of an action against a physician, to be 
     board certified in a specialty relating to that area of 
     medicine.
       (d) Confidentiality of Specialist.--Upon a showing of good 
     cause by a defendant, the court may ascertain the identity of 
     a specialist referred to in subsection (a) while preserving 
     confidentiality.

     SEC. 103. SANCTIONS FOR FRIVOLOUS ACTIONS AND PLEADINGS.

       (a) Signature Required.--Every pleading, written motion, 
     and other paper in any medical malpractice action shall be 
     signed by at least 1 attorney of record in the attorney's 
     individual name, or, if the party is not represented by an 
     attorney, shall be signed by the party. Each paper shall 
     state the signer's address and telephone number, if any. An 
     unsigned paper shall be stricken unless omission of the 
     signature is corrected promptly after being called to the 
     attention of the attorney or party.
       (b) Certificate of Merit.--(1) A medical malpractice action 
     shall be dismissed unless the attorney or unrepresented party 
     presenting the complaint certifies that, to the best of the 
     person's knowledge, information, and belief, formed after an 
     inquiry reasonable under the circumstances,--
       (A) it is not being presented for any improper purpose, 
     such as to harass or to cause unnecessary delay or needless 
     increase in the cost of litigation;
       (B) the claims and other legal contentions therein are 
     warranted by existing law or by a nonfrivolous argument for 
     the extension, modification, or reversal of existing law or 
     the establishment of new law; and
       (C) the allegations and other factual contentions have 
     evidentiary support or, if specifically so identified, are 
     likely to have evidentiary support after a reasonable 
     opportunity for further investigation and discovery.
       (2) By presenting to the court (whether by signing, filing, 
     submitting, or later advocating) a pleading, written motion, 
     or other paper, an attorney or unrepresented party is 
     certifying that to the best of the person's knowledge, 
     information and belief, formed after an inquiry reasonable 
     under the circumstances--
       (A) it is not being presented for any improper purpose, 
     such as to harass or to cause unnecessary delay or needless 
     increase in the cost of litigation;
       (B) the claims, defenses, and other legal contentions 
     therein are warranted by existing law or by a nonfrivolous 
     argument for the extension, modification, or reversal of 
     existing law or the establishment of new law; and
       (C) the allegations and other factual contentions have 
     evidentiary support or, if specifically so identified, are 
     reasonable based on a lack of information or belief.
       (c) Mandatory Sanctions.--
       (1) First violation.--If, after notice and a reasonable 
     opportunity to respond, a court, upon motion or upon its own 
     initiative, determines that subsection (b) has been violated, 
     the court shall find each attorney or party in violation in 
     contempt of court and shall require the payment of costs and 
     attorneys fees. The court may also impose additional 
     appropriate sanctions, such as striking the pleadings, 
     dismissing the suit, and sanctions plus interest, upon the 
     person in violation, or upon both such person and such 
     person's attorney or client (as the case may be).
       (2) Second violation.--If, after notice and a reasonable 
     opportunity to respond, a court, upon motion or upon its own 
     initiative, determines that subsection (b) has been violated 
     and that the attorney or party with respect to which the 
     determination was made has committed one previous violation 
     of subsection (b) before this or any other court, the court 
     shall find each such attorney or party in contempt of court 
     and shall require the payment of costs and attorneys fees, 
     and require such person in violation (or both such person and 
     such person's attorney or client (as the case may be)) to pay 
     a monetary fine. The court may also impose additional 
     appropriate sanctions, such as striking the pleadings, 
     dismissing the suit and sanctions plus interest, upon such 
     person in violation, or upon both such person and such 
     person's attorney or client (as the case may be).
       (3) Third violation.--If, after notice and a reasonable 
     opportunity to respond, a court, upon motion or upon its own 
     initiative, determines that subsection (b) has been violated 
     and that the attorney or party with respect to which the 
     determination was made has committed more than one previous 
     violation of subsection (b) before this or any other court, 
     the court shall find each such attorney or party in contempt 
     of court, refer

[[Page 9287]]

     each such attorney to one or more appropriate State bar 
     associations for disciplinary proceedings, require the 
     payment of costs and attorneys fees, and require such person 
     in violation (or both such person and such person's attorney 
     or client (as the case may be)) to pay a monetary fine. The 
     court may also impose additional appropriate sanctions, such 
     as striking the pleadings, dismissing the suit, and sanctions 
     plus interest, upon such person in violation, or upon both 
     such person and such person's attorney or client (as the case 
     may be).

     SEC. 104. MANDATORY MEDIATION.

       (a) In General.--In any medical malpractice action, before 
     such action comes to trial, mediation shall be required. Such 
     mediation shall be conducted by one or more mediators who are 
     selected by agreement of the parties or, if the parties do 
     not agree, who are qualified under applicable State law and 
     selected by the court.
       (b) Requirements.--Mediation under subsection (a) shall be 
     made available by a State subject to the following 
     requirements:
       (1) Participation in such mediation shall be in lieu of any 
     alternative dispute resolution method required by any other 
     law or by any contractual arrangement made by or on behalf of 
     the parties before the commencement of the action.
       (2) Each State shall disclose to residents of the State the 
     availability and procedures for resolution of consumer 
     grievances regarding the provision of (or failure to provide) 
     health care services, including such mediation.
       (3) Each State shall provide that such mediation may begin 
     before or after, at the option of the claimant, the 
     commencement of a medical malpractice action.
       (4) The Attorney General, in consultation with the 
     Secretary of Health and Human Services, shall, by regulation, 
     develop requirements with respect to such mediation to ensure 
     that it is carried out in a manner that--
       (A) is affordable for the parties involved;
       (B) encourages timely resolution of claims;
       (C) encourages the consistent and fair resolution of 
     claims; and
       (D) provides for reasonably convenient access to dispute 
     resolution.
       (c) Further Redress and Admissibility.--Any party 
     dissatisfied with a determination reached with respect to a 
     medical malpractice claim as a result of an alternative 
     dispute resolution method applied under this section shall 
     not be bound by such determination. The results of any 
     alternative dispute resolution method applied under this 
     section, and all statements, offers, and communications made 
     during the application of such method, shall be inadmissible 
     for purposes of adjudicating the claim.

     SEC. 105. LIMITATION ON PUNITIVE DAMAGES.

       (a) In general.--Punitive damages may not be awarded in a 
     medical malpractice action, except upon proof of--
       (1) gross negligence;
       (2) reckless indifference to life; or
       (3) an intentional act, such as voluntary intoxication or 
     impairment by a physician, sexual abuse or misconduct, 
     assault and battery, or falsification of records.
       (b) Allocation.--In such a case, the award of punitive 
     damages shall be allocated 50 percent to the claimant and 50 
     percent to a trustee appointed by the court, to be used by 
     such trustee in the manner specified in subsection (d). The 
     court shall appoint the Secretary of Health and Human 
     Services as such trustee.
       (c) Exception.--This section shall not apply with respect 
     to an action if the applicable State law provides (or has 
     been construed to provide) for damages in such an action that 
     are only punitive or exemplary in nature.
       (d) Trust Fund.--
       (1) In general.--This subsection applies to amounts 
     allocated to the Secretary of Health and Human Services as 
     trustee under subsection (b).
       (2) Availability.--Such amounts shall, to the extent 
     provided in advance in appropriations Acts, be available for 
     use by the Secretary of Health and Human Services under 
     paragraph (3) and shall remain so available until expended.
       (3) Use.--
       (A) Subject to subparagraph (B), the Secretary of Health 
     and Human Services, acting through the Director of the Agency 
     for Healthcare Research and Quality, shall use the amounts to 
     which this subsection applies for activities to reduce 
     medical errors and improve patient safety.
       (B) The Secretary of Health and Human Services may not use 
     any part of such amounts to establish or maintain any system 
     that requires mandatory reporting of medical errors.
       (C) The Secretary of Health and Human Services shall 
     promulgate regulations to establish programs and procedures 
     for carrying out this paragraph.
       (4) Investment.--
       (A) The Secretary of Health and Human Services shall invest 
     the amounts to which this subsection applies in such amounts 
     as such Secretary determines are not required to meet current 
     withdrawals. Such investments may be made only in interest-
     bearing obligations of the United States. For such purpose, 
     such obligations may be acquired on original issue at the 
     issue price, or by purchase of outstanding obligations at the 
     market price.
       (B) Any obligation acquired by the Secretary in such 
     Secretary's capacity as trustee of such amounts may be sold 
     by the Secretary at the market price.

     SEC. 106. USE OF SAVINGS TO BENEFIT PROVIDERS THROUGH REDUCED 
                   PREMIUMS.

       (a) In General.--Notwithstanding any other provision of 
     this title, a provision of this title may be applied by a 
     court to the benefit of a party insured by a medical 
     malpractice liability insurance company only if the court--
       (1) determines the amount of savings realized by the 
     company as a result; and
       (2) requires the company to pay an amount equal to the 
     amount of such savings to a trustee appointed by the court, 
     to be distributed by such trustee in a manner that has the 
     effect of benefiting health care providers insured by the 
     company through reduced premiums for medical malpractice 
     liability insurance.
       (b) Definition.--For purposes of this section, the term 
     ``medical malpractice liability insurance company'' means an 
     entity in the business of providing an insurance policy under 
     which the entity makes payment in settlement (or partial 
     settlement) of, or in satisfaction of a judgment in, a 
     medical malpractice action or claim.

     SEC. 107. DEFINITIONS.

       In this title, the following definitions apply:
       (1) Alternative dispute resolution method.--The term 
     ``alternative dispute resolution method'' means a method that 
     provides for the resolution of medical malpractice claims in 
     a manner other than through medical malpractice actions.
       (2) Claimant.--The term ``claimant'' means any person who 
     alleges a medical malpractice claim, and any person on whose 
     behalf such a claim is alleged, including the decedent in the 
     case of an action brought through or on behalf of an estate.
       (3) Health care professional.--The term ``health care 
     professional'' means any individual who provides health care 
     services in a State and who is required by the laws or 
     regulations of the State to be licensed or certified by the 
     State to provide such services in the State.
       (4) Health care provider.--The term ``health care 
     provider'' means any organization or institution that is 
     engaged in the delivery of health care services in a State 
     and that is required by the laws or regulations of the State 
     to be licensed or certified by the State to engage in the 
     delivery of such services in the State.
       (5) Injury.--The term ``injury'' means any illness, 
     disease, or other harm that is the subject of a medical 
     malpractice action or a medical malpractice claim.
       (6) Mandatory.--The term ``mandatory'' means required to be 
     used by the parties to attempt to resolve a medical 
     malpractice claim notwithstanding any other provision of an 
     agreement, State law, or Federal law.
       (7) Mediation.--The term ``mediation'' means a settlement 
     process coordinated by a neutral third party and without the 
     ultimate rendering of a formal opinion as to factual or legal 
     findings.
       (8) Medical malpractice action.--The term ``medical 
     malpractice action'' means an action in any State or Federal 
     court against a physician, or other health professional, who 
     is licensed in accordance with the requirements of the State 
     involved that--
       (A) arises under the law of the State involved;
       (B) alleges the failure of such physician or other health 
     professional to adhere to the relevant professional standard 
     of care for the service and specialty involved;
       (C) alleges death or injury proximately caused by such 
     failure; and
       (D) seeks monetary damages, whether compensatory or 
     punitive, as relief for such death or injury.
       (9) Medical malpractice claim.--The term ``medical 
     malpractice claim'' means a claim forming the basis of a 
     medical malpractice action.
       (10) State.--The term ``State'' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, American Samoa, Guam, the Commonwealth of the Northern 
     Mariana Islands, the Virgin Islands, and any other territory 
     or possession of the United States.

     SEC. 108. APPLICABILITY.

       (a) In General.--Except as provided in section 104, this 
     title shall apply with respect to any medical malpractice 
     action brought on or after the date of the enactment of this 
     Act.
       (b) Federal Court Jurisdiction Not Established on Federal 
     Question Grounds.--Nothing in this title shall be construed 
     to establish any jurisdiction in the district courts of the 
     United States over medical malpractice actions on the basis 
     of section 1331 or 1337 of title 28, United States Code.

   TITLE II--INDEPENDENT ADVISORY COMMISSION ON MEDICAL MALPRACTICE 
                               INSURANCE

     SEC. 201. ESTABLISHMENT.

       (a) Findings.--The Congress finds as follows:

[[Page 9288]]

       (1) The sudden rise in medical malpractice premiums in 
     regions of the United States can threaten patient access to 
     doctors and other health providers.
       (2) Improving patient access to doctors and other health 
     providers is a national priority.
       (b) Establishment.--There is established a national 
     commission to be known as the ``Independent Advisory 
     Commission on Medical Malpractice Insurance'' (in this title 
     referred to as the ``Commission'').

     SEC. 202. DUTIES.

       (a) In General.--(1) The Commission shall evaluate the 
     effectiveness of health care liability reforms in achieving 
     the purposes specified in paragraph (2) in comparison to the 
     effectiveness of other legislative proposals to achieve the 
     same purposes.
       (2) The purposes referred to in paragraph (1) are to--
       (A) improve the availability of health care services;
       (B) reduce the incidence of ``defensive medicine'';
       (C) lower the cost of health care liability insurance;
       (D) ensure that persons with meritorious health care injury 
     claims receive fair and adequate compensation; and
       (E) provide an increased sharing of information in the 
     health care system which will reduce unintended injury and 
     improve patient care.
       (b) Considerations.--In formulating proposals on the 
     effectiveness of health care liability reform in comparison 
     to these alternatives, the Commission shall, at a minimum, 
     consider the following:
       (1) Alternatives to the current medical malpractice tort 
     system that would ensure adequate compensation for patients, 
     preserve access to providers, and improve health care safety 
     and quality.
       (2) Modifications of, and alternatives to, the existing 
     State and Federal regulations and oversight that affect, or 
     could affect, medical malpractice lines of insurance.
       (3) State and Federal reforms that would distribute the 
     risk of medical malpractice more equitably among health care 
     providers.
       (4) State and Federal reforms that would more evenly 
     distribute the risk of medical malpractice across various 
     categories of providers.
       (5) The effect of a Federal medical malpractice reinsurance 
     program administered by the Department of Health and Human 
     Services.
       (6) The effect of a Federal medical malpractice insurance 
     program, administered by the Department of Health and Human 
     Services, to provide medical malpractice insurance based on 
     customary coverage terms and liability amounts in States 
     where such insurance is unavailable or is unavailable at 
     reasonable and customary terms.
       (7) Programs that would reduce medical errors and increase 
     patient safety, including new innovations in technology and 
     management.
       (8) The effect of State policies under which--
       (A) any health care professional licensed by the State has 
     standing in any State administrative proceeding to challenge 
     a proposed rate increase in medical malpractice insurance; 
     and
       (B) a provider of medical malpractice insurance in the 
     State may not implement a rate increase in such insurance 
     unless the provider, at minimum, first submits to the 
     appropriate State agency a description of the rate increase 
     and a substantial justification for the rate increase.
       (9) The effect of reforming antitrust law to prohibit 
     anticompetitive activities by medical malpractice insurers.
       (10) Programs to facilitate price comparison of medical 
     malpractice insurance by enabling any health care provider to 
     obtain a quote from each medical malpractice insurer to write 
     the type of coverage sought by the provider.
       (11) The effect of providing Federal grants for geographic 
     areas that have a shortage of one or more types of health 
     providers as a result of the providers making the decision to 
     cease or curtail providing health services in the geographic 
     areas because of the costs of maintaining malpractice 
     insurance.

     SEC. 203. REPORT.

       (a) In General.--The Commission shall transmit to 
     Congress--
       (1) an initial report not later than 180 days after the 
     date of the initial meeting of the Commission; and
       (2) a report not less than each year thereafter until the 
     Commission terminates.
       (b) Contents.--Each report transmitted under this section 
     shall contain a detailed statement of the findings and 
     conclusions of the Commission.
       (c) Voting and Reporting Requirements.--With respect to 
     each proposal or recommendation contained in the report 
     submitted under subsection (a), each member of the Commission 
     shall vote on the proposal or recommendation, and the 
     Commission shall include, by member, the results of that vote 
     in the report.

     SEC. 204. MEMBERSHIP.

       (a) Number and appointment.--The Commission shall be 
     composed of 15 members appointed by the Comptroller General 
     of the United States.
       (b) Membership.--
       (1) In general.--The membership of the Commission shall 
     include individuals with national recognition for their 
     expertise in health finance and economics, actuarial science, 
     medical malpractice insurance, insurance regulation, health 
     care law, health care policy, health care access, allopathic 
     and osteopathic physicians, other providers of health care 
     services, patient advocacy, and other related fields, who 
     provide a mix of different professionals, broad geographic 
     representations, and a balance between urban and rural 
     representatives.
       (2) Inclusion.--The membership of the Commission shall 
     include the following:
       (A) Two individuals with expertise in health finance and 
     economics, including one with expertise in consumer 
     protections in the area of health finance and economics.
       (B) Two individuals with expertise in medical malpractice 
     insurance, representing both commercial insurance carriers 
     and physician-sponsored insurance carriers.
       (C) An individual with expertise in State insurance 
     regulation and State insurance markets.
       (D) An individual representing physicians.
       (E) An individual with expertise in issues affecting 
     hospitals, nursing homes, nurses, and other providers.
       (F) Two individuals representing patient interests.
       (G) Two individuals with expertise in health care law or 
     health care policy.
       (H) An individual with expertise in representing patients 
     in malpractice lawsuits.
       (3) Majority.--The total number of individuals who are 
     directly involved with the provision or management of 
     malpractice insurance, representing physicians or other 
     providers, or representing physicians or other providers in 
     malpractice lawsuits, shall not constitute a majority of the 
     membership of the Commission.
       (4) Ethical disclosure.--The Comptroller General of the 
     United States shall establish a system for public disclosure 
     by members of the Commission of financial or other potential 
     conflicts of interest relating to such members.
       (c) Terms.--
       (1) In general.--The terms of the members of the Commission 
     shall be for 3 years except that the Comptroller General of 
     the United States shall designate staggered terms for the 
     members first appointed.
       (2) Vacancies.--Any member appointed to fill a vacancy 
     occurring before the expiration of the term for which the 
     member's predecessor was appointed shall be appointed only 
     for the remainder of that term. A member may serve after the 
     expiration of that member's term until a successor has taken 
     office. A vacancy in the Commission shall be filled in the 
     manner in which the original appointment was made.
       (3) Compensation.--Members of the Commission shall be 
     compensated in accordance with section 1805(c)(4) of the 
     Social Security Act.
       (4) Chairman; vice chairman.--The Comptroller General of 
     the United States shall designate at the time of appointment 
     a member of the Commission as Chairman and a member as Vice 
     Chairman. In the case of vacancy of the Chairmanship or Vice 
     Chairmanship, the Comptroller General may designate another 
     member for the remainder of that member's term.
       (5) Meetings.--
       (A) In general.--The Commission shall meet at the call of 
     the Chairman.
       (B) Initial meeting.--The Commission shall hold an initial 
     meeting not later than the date that is 1 year after the date 
     of the enactment of this title, or the date that is 3 months 
     after the appointment of all the members of the Commission, 
     whichever occurs earlier.

     SEC. 205. DIRECTOR AND STAFF; EXPERTS AND CONSULTANTS.

       Subject to such review as the Comptroller General of the 
     United States deems necessary to assure the efficient 
     administration of the Commission, the Commission may--
       (1) employ and fix the compensation of an Executive 
     Director (subject to the approval of the Comptroller General) 
     and such other personnel as may be necessary to carry out its 
     duties;
       (2) seek such assistance and support as may be required in 
     the performance of its duties from appropriate Federal 
     departments and agencies;
       (3) enter into contracts or make other arrangements, as may 
     be necessary for the conduct of the work of the Commission;
       (4) make advance, progress, and other payments which relate 
     to the work of the Commission;
       (5) provide transportation and subsistence for persons 
     serving without compensation; and
       (6) prescribe such rules and regulations as it deems 
     necessary with respect to the internal organization and 
     operation of the Commission.

     SEC. 206. POWERS.

       (a) Obtaining Official Data.--The Commission may secure 
     directly from any department or agency of the United States 
     information necessary to enable it to carry out this section. 
     Upon request of the Chairman, the head of that department or 
     agency shall furnish that information to the Commission on an 
     agreed upon schedule.

[[Page 9289]]

       (b) Data Collection.--In order to carry out its functions, 
     the Commission shall--
       (1) utilize existing information, both published and 
     unpublished, where possible, collected and assessed either by 
     its own staff or under other arrangements made in accordance 
     with this section;
       (2) carry out, or award grants or contracts for, original 
     research and experimentation, where existing information is 
     inadequate; and
       (3) adopt procedures allowing any interested party to 
     submit information for the Commission's use in making reports 
     and recommendations.
       (c) Access of General Accounting Office to Information.--
     The Comptroller General of the United States shall have 
     unrestricted access to all deliberations, records, and 
     nonproprietary data of the Commission, immediately upon 
     request.
       (d) Periodic Audit.--The Commission shall be subject to 
     periodic audit by the Comptroller General of the United 
     States.

     SEC. 207. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--There are authorized to be appropriated 
     such sums as may be necessary to carry out this title for 
     each of fiscal years 2004 through 2008.
       (b) Requests for Appropriations.--The Commission shall 
     submit requests for appropriations in the same manner as the 
     Comptroller General of the United States submits requests for 
     appropriations, but amounts appropriated for the Commission 
     shall be separate from amounts appropriated for the 
     Comptroller General.
       Amend the title so as to read: ``A bill to limit frivolous 
     medical malpractice lawsuits, to reform the medical 
     malpractice insurance business in order to reduce the cost of 
     medical malpractice insurance, to enhance patient access to 
     medical care, and for other purposes.''.

  Mr. CONYERS (during the reading). Mr. Speaker, I ask unanimous 
consent that the motion be considered as read and printed in the 
Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Conyers) is recognized for 5 minutes in support of his 
motion.
  Mr. CONYERS. Mr. Speaker, this motion is being offered by me and the 
dean of the Congress, the gentleman from Michigan (Mr. Dingell). We are 
offering this motion to recommit to attack the heart of the medical 
malpractice crisis. Rather than limiting the rights of legitimate 
malpractice victims, as the bill before us would do, our motion would 
logically and directly address the problems of frivolous lawsuits and 
insurance industry abuses.
  Title I addresses the problem of frivolous lawsuits. It would require 
that both an attorney and a health care specialist submit an affidavit 
that the claim is warranted before malpractice action can be brought 
and imposes strict sanctions for attorneys who make frivolous 
pleadings. But it provides also for mandatory mediation, a uniform 
statute of limitations, and a narrowing of the requirements for 
punitive damage claims. Finally, insurers would be required to dedicate 
at least 50 percent of any savings resulting from the litigation 
reforms to reduce the premiums that medical professionals pay.
  Unlike the majority's bill before us, this motion is limited to 
licensed physicians and health professionals for malpractice cases 
only. It does not include lawsuits against HMOs, insurance companies, 
nursing homes, and drug and device manufacturers.
  The second part of this motion to recommit, title II, establishes a 
national commission to evaluate the rising insurance premiums and the 
causes for why that is occurring. The commission would consider, among 
other things, whether the McCarran-Ferguson Antitrust exemption for 
medical malpractice insurers should be reconsidered and possibly 
repealed and study the potential benefits of providing a Federal 
medical malpractice insurance program where insurance was unavailable 
or unaffordable.
  This same commission, 15-person commission appointed by the 
Comptroller General, would also consider government-sponsored grant 
programs to give direct assistance to areas facing a shortage of health 
care providers, as well as to send physicians to trauma centers that 
are in danger of closing because of rising premiums. Finally, it would 
consider alternative means of reducing medical errors and increasing 
patient safety.
  So support this motion to recommit. It is good policy. It changes the 
whole line of unbelievably reactionary legislation that has come out of 
this House on this subject before now. It is time for a change. We want 
to limit frivolous lawsuits, and this would give us an opportunity to 
examine the real causes of the medical malpractice insurance crisis.
  The SPEAKER pro tempore. Does the gentleman from Wisconsin (Mr. 
Sensenbrenner) rise in opposition to the motion?
  Mr. SENSENBRENNER. I do, Mr. Speaker.
  The SPEAKER pro tempore. The gentleman from Wisconsin (Mr. 
Sensenbrenner) is recognized for 5 minutes.
  Mr. SENSENBRENNER. Mr. Speaker, yes, it is time for a change, and it 
is time for a real change. This motion to recommit does not provide a 
real change, and it should be defeated. It should be defeated because 
it contains zero legal protections for doctors beyond current law.
  Legal reforms are essential to solving the current crisis in the 
medical professional liability insurance area and increasing access of 
health care to all. Here is what the president of the National 
Association of Insurance Commissioners said: ``To date, insurance 
regulators have not seen evidence that suggests medical malpractice 
insurers have engaged or are engaging in price-fixing, bid-rigging, or 
market allocation. The evidence points to rising loss costs and defense 
costs associated with litigation as the principal drivers of medical 
malpractice rates.''
  The underlying bill, and not the motion to recommit, is the only 
proven legislative solution to the current crisis. According to the 
CBO, under H.R. 4280 ``premiums for medical malpractice insurance 
ultimately would be an average of 25 to 30 percent below what they 
would be under current law.''
  The motion to recommit, on the other hand, besides including zero 
legal protections for doctors beyond current law, sets up an advisory 
commission to study a problem that is already patently obvious to the 
most casual observer and to report back sometime in the future when 
even more patients will have lost access to essential medical care.
  Opponents of the bill claim there is no enforcement mechanism to make 
sure that medical professional liability rates go down. That is 
completely false. An enforcement mechanism already exists throughout 
all 50 States, namely, State insurance commissioners who are required 
by State law to turn down rates that are excessive, unfairly 
discriminatory, or otherwise unjustified. On the other hand, the motion 
to recommit creates a system of price controls linked to savings that 
without the legal protections in this bill will be nonexistent. Without 
legal reforms, there will be no cost savings, and the motion to 
recommit contains zero legal protections beyond the current law.
  Along with creating a commission to further study a problem that is 
obvious, the motion simply throws more Federal money at it. H.R. 4280, 
on the other hand, contains solid legal reforms that have been proven 
successful over 28 years in California and will save billions of 
dollars in taxpayers' funds, according to the CBO. The choice is clear: 
oppose the motion to recommit, support H.R. 4280, and let us make sure 
that doctors are there to care for the 287 million Americans.
  Mr. Speaker, I urge defeat of this motion and passage of the bill.
  The SPEAKER pro tempore. Without objection, the previous question is 
ordered on the motion to recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. CONYERS. Mr. Speaker, I object to the vote on the ground that a 
quorum is not present and make the point of order that a quorum is not 
present.
  The SPEAKER pro tempore. Evidently a quorum is not present.

[[Page 9290]]

  The Sergeant at Arms will notify absent Members.
  Pursuant to clauses 8 and 9 of rule XX, this 15-minute vote on the 
motion to recommit will be followed by 5-minute votes, if ordered, on 
passage of H.R. 4280, adoption of H. Con. Res. 378, and adoption of H. 
Con. Res. 409.
  The vote was taken by electronic device, and there were--yeas 193, 
nays 231, not voting 9, as follows:

                             [Roll No. 165]

                               YEAS--193

     Abercrombie
     Ackerman
     Alexander
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Ballance
     Becerra
     Bell
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boswell
     Boucher
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Capps
     Capuano
     Cardin
     Cardoza
     Carson (IN)
     Carson (OK)
     Case
     Chandler
     Clay
     Clyburn
     Conyers
     Cooper
     Costello
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis (TN)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley (CA)
     Doyle
     Duncan
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Flake
     Ford
     Frank (MA)
     Frost
     Gephardt
     Gonzalez
     Gordon
     Green (TX)
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Hill
     Hinchey
     Hinojosa
     Hoeffel
     Holt
     Honda
     Hooley (OR)
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     John
     Johnson (IL)
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     Kleczka
     Kucinich
     Lampson
     Langevin
     Larsen (WA)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren
     Lynch
     Majette
     Maloney
     Markey
     Marshall
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McIntyre
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Moore
     Moran (VA)
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Sandlin
     Schakowsky
     Schiff
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Stenholm
     Strickland
     Stupak
     Tanner
     Tauscher
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Turner (TX)
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                               NAYS--231

     Aderholt
     Akin
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Bereuter
     Berkley
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boyd
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Burgess
     Burns
     Burr
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Chocola
     Coble
     Cole
     Collins
     Cox
     Cramer
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis (FL)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Dreier
     Dunn
     Ehlers
     Emerson
     English
     Everett
     Feeney
     Ferguson
     Foley
     Forbes
     Fossella
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Goode
     Goodlatte
     Goss
     Granger
     Graves
     Green (WI)
     Greenwood
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Holden
     Hostettler
     Houghton
     Hulshof
     Hunter
     Isakson
     Issa
     Jenkins
     Johnson (CT)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     LaHood
     Larson (CT)
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Matheson
     McCotter
     McCrery
     McHugh
     McInnis
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Mollohan
     Moran (KS)
     Murphy
     Murtha
     Musgrave
     Myrick
     Nethercutt
     Neugebauer
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Ose
     Otter
     Oxley
     Paul
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Porter
     Portman
     Pryce (OH)
     Putnam
     Quinn
     Radanovich
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Toomey
     Turner (OH)
     Upton
     Vitter
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--9

     Brown-Waite, Ginny
     DeMint
     Hyde
     Istook
     Lantos
     Lowey
     Reyes
     Scott (GA)
     Tauzin


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. Sweeney) (during the vote). Members are 
advised there are 2 minutes remaining in this vote.

                              {time}  1748

  Ms. McCOLLUM changed her vote from ``nay'' to ``yea.''
  So the motion to recommit was rejected.
  The result of the vote was announced as above recorded.
  Stated against:
  Ms. GINNY BROWN-WAITE of Florida. Mr. Speaker, on rollcall No. 165, I 
was unavoidably detained. Had I been present, I would have voted 
``no.''
  The SPEAKER pro tempore (Mr. Sweeney). The question is on the passage 
of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. GREENWOOD. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. This is a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 229, 
noes 197, not voting 7, as follows:

                             [Roll No. 166]

                               AYES--229

     Aderholt
     Akin
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Bereuter
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boyd
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burns
     Burr
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Cardoza
     Carter
     Castle
     Chabot
     Chocola
     Cole
     Collins
     Cox
     Cramer
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis (TN)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     Diaz-Balart, M.
     Dooley (CA)
     Dreier
     Duncan
     Dunn
     Ehlers
     Emerson
     English
     Everett
     Feeney
     Ferguson
     Foley
     Forbes
     Fossella
     Frank (MA)
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Goode
     Goodlatte
     Gordon
     Goss
     Granger
     Graves
     Green (WI)
     Greenwood
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Holden
     Hostettler
     Houghton
     Hulshof
     Hunter
     Isakson
     Issa
     Johnson (CT)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Matheson
     McCotter
     McCrery
     McHugh
     McInnis
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Murtha
     Musgrave
     Myrick
     Nethercutt
     Neugebauer
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Ose
     Otter
     Oxley
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Pomeroy
     Porter
     Portman
     Pryce (OH)
     Putnam
     Quinn
     Radanovich
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Stenholm
     Sullivan
     Sweeney
     Tancredo
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Toomey
     Turner (OH)
     Upton

[[Page 9291]]


     Vitter
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NOES--197

     Abercrombie
     Ackerman
     Alexander
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Ballance
     Becerra
     Bell
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boswell
     Boucher
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Capps
     Capuano
     Cardin
     Carson (IN)
     Carson (OK)
     Case
     Chandler
     Clay
     Clyburn
     Coble
     Conyers
     Cooper
     Costello
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Diaz-Balart, L.
     Dicks
     Dingell
     Doggett
     Doolittle
     Doyle
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Flake
     Ford
     Frost
     Gephardt
     Gonzalez
     Green (TX)
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Hill
     Hinchey
     Hinojosa
     Hoeffel
     Holt
     Honda
     Hooley (OR)
     Hoyer
     Inslee
     Israel
     Istook
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Jenkins
     John
     Johnson (IL)
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     King (NY)
     Kleczka
     Kucinich
     Lampson
     Langevin
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren
     Lynch
     Majette
     Maloney
     Markey
     Marshall
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McIntyre
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Mollohan
     Moore
     Moran (VA)
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Pelosi
     Price (NC)
     Rahall
     Rangel
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Sandlin
     Schakowsky
     Schiff
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tanner
     Tauscher
     Terry
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Turner (TX)
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                             NOT VOTING--7

     DeMint
     Hyde
     Lantos
     Lowey
     Reyes
     Scott (GA)
     Tauzin


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (during the vote). Members are advised there 
are 2 minutes remaining in this vote.

                              {time}  1800

  So the bill was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

                          ____________________