[Congressional Record (Bound Edition), Volume 151 (2005), Part 14]
[House]
[Pages 18294-18334]
[From the U.S. Government Publishing Office, www.gpo.gov]




HELP EFFICIENT, ACCESSIBLE, LOW-COST, TIMELY HEALTHCARE (HEALTH) ACT OF 
                                  2005

  Mr. SMITH of Texas. Mr. Speaker, pursuant to House Resolution 385 and 
as the designee of the majority leader, I call up the bill (H.R. 5) 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.
  The text of H.R. 5 is as follows:

                                 H.R. 5

       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 2005''.

     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

[[Page 18295]]

     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.
     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 
     which 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)

[[Page 18296]]

     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 verifi-
     able 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 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.

[[Page 18297]]



     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 385, the Chair 
at any time may postpone further consideration of the bill until a time 
designated by the Speaker.
  The gentleman from Texas (Mr. Smith) and the gentleman from Michigan 
(Mr. Conyers) each will control 1 hour.
  The Chair recognizes the gentleman from Texas (Mr. Smith).


                             General Leave

  Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous material on H.R. 5.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I strongly support the HEALTH Act, which is identical to 
two other bills that passed the House during the last Congress. The 
HEALTH Act is modeled on California's Medical Injury Compensation 
Reform Act, called MICRA, which has resulted in California's medical 
liability premiums increasing only one-third as much as they have in 
other States.
  MICRA's reforms, which are included in the HEALTH Act, include a 
$250,000 cap on noneconomic damages; limits on the contingency fees 
lawyers can charge; a fair-share rule by which damages are allocated in 
direct proportion to fault; reasonable guidelines, but not caps, on the 
award of punitive damages; and a safe harbor from punitive damages for 
products that meet FDA safety requirements.

                              {time}  1330

  According to the nonpartisan organization Jury Verdict Research, the 
median medical liability award has more than doubled in the last 7 
years to $1.2 million.
  Doctors and other health care providers are being forced to abandon 
patients and practices, particularly in high-risk specialties such as 
emergency medicine, brain surgery and obstetrics and gynecology.
  Women are particularly hard hit, as are low-income neighborhoods and 
rural areas. According to a report by the Department of Health and 
Human Services, ``Unless a State has adopted limitations on noneconomic 
damages, the cost of these awards for noneconomic damages is paid by 
all other Americans through higher health care costs, higher health 
insurance premiums, higher taxes, reduced access to quality care, and 
threats to quality of care.''
  Many doctors are no longer available to treat patients. Mary Rasar's 
father did not get the medical care he needed following a car accident 
last summer, because the only trauma center in his area closed for 10 
days due to medical liability costs. Her father died from those 
injuries.
  Melinda Sallard, a 22-year-old mother, was forced to deliver her own 
baby on the side of the road after her physician stopped delivering 
babies and her hospital's maternity department closed because of rising 
medical liability costs.
  Leanne Dyess' husband Tony sustained head injuries in a car accident 
and could not find a neurosurgeon to treat him because rising liability 
costs had forced insurers to drop their coverage. Tony was airlifted to 
a hospital in another State that still had neurosurgeons, but 6 hours 
had passed, and it was too late. As a result Tony suffered permanent 
brain damage.
  In my hometown, the CEO of San Antonio's Methodist Children's 
Hospital has seen his premiums increase 400 percent. He has been sued 
three times. In one case the only interaction with the person suing was 
that he stepped in her child's hospital room and asked simply, how is 
your child doing? Each jury cleared him of any wrongdoing, and the 
total amount of time all three juries spent deliberating was less than 
an hour. But the doctor's insurance company spent a great deal of time, 
effort and money in his defense.
  It is no surprise the American College of Emergency Physicians found 
that large majorities of both rural and urban hospitals had inadequate 
on-call specialists coverage. And there has been a 40 percent reduction 
in medical students entering obstetrics and gynecology.
  According to the chair of the OB/GYN department at the Yale School of 
Medicine, ``Within 2 years we will be faced with a very real 
possibility of having to shut down our high-risk obstetrical practice, 
a practice that cares for the sickest mothers in the State.''
  As for legitimate cases of medical malpractice, nothing in the HEALTH 
Act prevents juries from awarding very large amounts to victims, 
including children. The HEALTH Act does not limit in any way an award 
of economic damages to injured victims. Economic damages include lost 
wages or home services, medical costs, the cost of pain-reducing drugs, 
therapy and lifetime rehabilitation care.
  In fact, in just the last few years, juries in California have 
awarded the following damages to medical malpractice victims: An $84 
million award to a 5-year-old boy, a $59 million award to a 3-year-old 
girl, a $50 million award to a 10-year-old boy, a $12 million award to 
a 30-year-old homemaker, and a $27 million award to a 25-year-old 
woman. Other examples include damages of 
$7, $22, $25, $30, and $49 million, all in just the last few years. 
Awards of these same sizes would be available under the HEALTH Act. 
Researchers at the Harvard School of Public Health stated that ``we 
found no evidence that women or the elderly were disparately impacted 
by the cap'' on noneconomic damages in California under MICRA.
  The HEALTH Act will work. According to the Congressional Budget 
Office, ``Under the HEALTH Act, premiums from medical malpractice 
insurance ultimately would be an average of 25 percent to 30 percent 
below what they would be under current law.''
  The American people support the HEALTH Act. The Gallup poll found 
that 72 percent of those surveyed favor a limit on the amount patients 
can be awarded for noneconomic damages. The HEALTH Act also respects 
the judgments of State legislatures because it does not preempt any 
State law that limits damages, be they higher or lower than the limits 
provided for in the HEALTH Act.
  Finally, this legislation is supported by some 200 organizations, 
including the American Medical Association, the American Academy of 
Pediatrics, the American College of Emergency Physicians, the American 
College of Nurse Practitioners, the American College of Obstetricians 
and Gynecologists, and the Council of Women's and Infant's Specialty 
Hospitals.
  Mr. Speaker, for the sake of those who need health care, for the sake 
of health care providers who simply want to practice their professions, 
please join me and these selfless organizations in supporting the 
HEALTH Act.
  Mr. Speaker, I reserve the balance of my time.
  The SPEAKER pro tempore (Mr. Putnam). The Chair understands that the 
gentleman from Michigan (Mr. Conyers) will control 40 minutes as the 
designee of the minority leader, and the gentlewoman from Colorado (Ms. 
DeGette) will control 20 minutes as the designee of the minority 
leader.
  Mr. CONYERS. Yes, sir. That is correct.
  Mr. Speaker, I yield myself such time as I may consume.
  Now, the reason that many people might support this bill is that they 
do not know that inside the bill, if they were asked, are you for 
legislation that makes it harder to sue drug companies and HMOs, I do 
not think you would get the same polling results.
  Mr. Speaker, I will insert into the Record after these remarks 
letters and reports in opposition to H.R. 5 from the American Bar 
Association, Public Citizen, and the American Federation of State, 
County and Municipal Employees and the National Conference of State 
Legislators.
  Mr. Speaker, make no mistake about it. This is a special interest 
bill before

[[Page 18298]]

us today. The bill would supersede the law in all States in the Union 
to cap noneconomic damages, to cap and limit punitive damages, to cap 
attorneys' fees for poor victims, to shorten the statute of 
limitations, to eliminate joint and several liability, and to eliminate 
collateral source.
  That is a pretty large menu. But, more amazing, this bill comes 
before us today without the benefit of a committee hearing, or a 
committee markup, and under a totally closed rule. How do you like 
that?
  Rather than helping doctors and victims, this measure pads the 
pockets of insurance companies, health maintenance organizations, and 
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 have a bill 
today for you.
  So let us cut the charade and get to the heart of the problem, and 
the insurance industry is the greatest place to start. This month we 
found out that the insurance industry has increased premiums by more 
than 100 percent over the last 5 years, while the claims they have paid 
out were essentially the same, were flat.
  This may have something to do with the fact that the insurance 
industry, which is exempt from antitrust laws, is not immune from 
collusion, price fixing, and other anticompetitive problems that they 
would be subject to if they did not have an antitrust exemption.
  It is also clear that a legislative solution, largely focused on 
limiting victim rights, available under our State tort system will do 
little other than increase the incidence of medical malpractice, which 
is already the third leading cause of preventable death in our Nation.
  So under the proposal, we here in Congress would be saying to the 
American people, we do not care if you lose your ability to bear 
children. We do not care if are you forced to bear excruciating pain 
for the reminder of your life. We do not care if you are permanently 
disfigured or crippled. We are going to limit your recovery no matter 
what.
  The proposed new statute of limitations in this bill takes absolutely 
no account of the fact that many injuries caused by malpractice or 
faulty drugs take years, sometimes decades, to manifest themselves. 
Under this proposal a patient who is negligently infected with HIV 
blood and develops AIDS 6 years later would be forever barred from 
filing a liability claim.
  The so-called periodic plan provisions are really nothing less than a 
Federal installment plan for the health maintenance organizations. The 
measure we have here right now 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 the amounts that they owe their victims.
  And guess who else gets a sweetheart deal under the legislation? The 
drug companies. The producers of such 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 
the billions of dollars in damages that they have had to pay had this 
bill been law.
  Do you really want to do this today, my colleagues? It would help 
insulate Vioxx claims for liability, adding insult to injury to 
hundreds of thousands of individuals and families who suffered heart 
attacks or lost their life as a result of this dangerous drug.
  I conclude. Nearly 100,000 people die in this country every year from 
medical malpractice. And at a time when 5 percent of our health care 
professionals cause 54 percent of all medical malpractice injuries, 
just a few, a few doctors causing all of this problem, the last thing 
we need to do is exacerbate this problem while ignoring the true causes 
of medical malpractice, the crisis that exists in this country today.
  My colleagues, I urge you to please do not accept this antipatient, 
antivictim legislation.
  Mr. Speaker, the material I referred to previously is as follows:

                                            National Conference of


                                           State Legislatures,

                                        Denver, CO, July 26, 2005.
     Re H.R. 5, the Help Efficient, Accessible, Low-Cost, Timely 
         Healthcare (HEALTH) Act of 2005.

     Hon. Dennis Hastert,
     Speaker of the House, House of Representatives, Washington, 
         DC.
     Hon. Nancy Pelosi,
     Minority Leader, House of Representatives, Washington, DC.
       Dear Speaker Hastert and Representative Pelosi: On behalf 
     of the National Conference of State Legislatures, I am 
     writing to express strong, bipartisan opposition to the 
     passage of federal medical malpractice legislation, H.R. 5, 
     the ``Help Efficient, Accessible, Low-Cost, Timely Healthcare 
     (HEALTH) Act of 2005,'' which is scheduled for a vote in the 
     House of Representatives on Wednesday, July 27.
       Medical malpractice, product liability and other areas of 
     tort reform are areas of law that have been traditionally and 
     successfully regulated by the states. Since the country's 
     inception, states have addressed the myriad of substantive 
     and regulatory issues regarding licensure, insurance, court 
     procedures, victim compensation, civil liability, medical 
     records and related matters. In the past two decades, all 
     states have explored various aspects of medical malpractice 
     and products liability and chosen various means for remedying 
     identified problems. To date, twenty-nine states have enacted 
     medical malpractice legislation in their 2005 legislative 
     sessions.
       NCSL's Medical Malpractice policy explicitly and firmly 
     states that ``American federalism contemplates diversity 
     among the states in establishing rules and respects the 
     ability of the states to act in their own best interests in 
     matters pertaining to civil liability due to negligence.'' 
     That diversity has worked well even under the most trying and 
     challenging circumstances. The adoption of a one-size-fits-
     all approach to medical malpractice envisioned in H.R. 5 and 
     other related measures would undermine that diversity and 
     disregard factors unique to each particular state.
       Federal medical malpractice legislation inappropriately 
     seeks to preempt various areas of state law. All 50 states 
     have statutes of limitations for medical malpractice suits. 
     All 50 states have rules of civil procedure governing the 
     admissibility of evidence and the use of expert witnesses. 
     More than half of the states have caps on noneconomic damages 
     and limitations on attorney's fees in medical malpractice 
     cases.
       This issue was scrutinized again at NCSL's last Fall Forum. 
     Our review included assessing whether circumstances had 
     developed or were so unique that only federal action could 
     provide an adequate and workable remedy. We again examined 
     recent state actions, policy options and experiences. We 
     discussed at length how various proposed or anticipated 
     pieces of federal legislation fared against NCSL's core 
     federalism questions. Those questions included (1) whether 
     preemption is needed to remediate serious conflicts imposing 
     severe burdens on national economic activity; (2) whether 
     preemption is needed to achieve a national objective; and (3) 
     whether the states are unable to correct the problem. The 
     resounding bipartisan conclusion was that federal legislation 
     is unnecessary.
       NCSL's opposition extends to any bill or amendment that 
     directly or indirectly preempts any state law governing the 
     awarding of damages by mandatory, uniform amounts or the 
     awarding of attorney's fees. Our opposition also extends to 
     any provision affecting the drafting of pleadings, the 
     introduction of evidence and statutes of limitations. 
     Furthermore, NCSL opposes any federal legislation that would 
     undermine the capacity of aggrieved parties to seek full and 
     fair redress in state courts for physical harm done to them 
     due to the negligence of others.
       Thank you for your consideration of our concerns. For 
     additional information, please contact Susan Parnas Frederick 
     or Trina Caudle in NCSL's Washington, D.C. office.
           Respectfully,

                                      Senator Michael Balboni,

                                           New York Senate, Chair,
     NCSL Law & Criminal Justice Committee.
                                  ____



                                                Public Citizen

                                    Washington, DC, July 25, 2005.
     Re please oppose H.R. 5--``HEALTH Act of 2005.''

       Dear Representative: H.R. 5, a bill dealing with civil 
     liability for medical malpractice, would shield doctors, 
     HMOs, hospitals, nursing homes, drug makers, and medical 
     device manufacturers from legal and financial responsibility 
     for harms inflicted by their misconduct. At the same time, it 
     would punish victims of medical negligence by making it more 
     difficult for them to recover fair compensation for their 
     injuries. We strongly oppose this bill and urge you to vote 
     against it.
       We are enclosing a detailed fact sheet evaluating the major 
     provisions of this misguided legislation, whose more 
     egregious features include:
       An arbitrary, non-adjustable $250,000 cap on non-economic 
     damages--the lowest limit imposed by any state that has 
     adopted caps

[[Page 18299]]

     since they first appeared 30 years ago--regardless of the 
     severity of injury, number of malfeasors, or number of 
     defendants involved.
       Insulation from liability for nursing homes, HMOs, drug 
     companies, and medical device manufacturers, and protection 
     from punitive damages for products that are FDA approved or 
     generally recognized as safe and effective.
       Federalized standards for medical malpractice liability 
     that preempt existing state laws in an arena that is 
     traditionally the purview of state legislatures and courts.
       The fact sheet is accompanied by our analysis of medical 
     malpractice judgments over the ``crisis'' period 2000 to 
     2004, showing that total payments to plaintiffs for 
     malpractice judgments have dropped 37.5 percent, when 
     adjusted for inflation, over the past five years. This 
     demonstrates--contrary to what proponents of denying legal 
     rights to victims contend--that lawsuits are not the engine 
     driving skyrocketing malpractice insurance premiums.
       For the reasons stated above, and more fully described in 
     the enclosures, we urge you to protect consumers by voting no 
     on H.R. 5.
           Sincerely,
     Joan Claybrook,
       President.
     Frank Clemente,
       Director, Congress Watch.
                                  ____



                                     American Bar Association,

                                    Washington, DC, July 21, 2005.
       Dear Representative: We understand that in the near future 
     the House is expected to consider H.R. 534, legislation to 
     preempt substantial portions of the state medical liability 
     laws. On behalf of the American Bar Association, I urge you 
     to vote against passage of H.R. 534. The ABA opposes H.R. 534 
     because it would interfere with the traditional state 
     regulation of medical liability laws and restrict the rights 
     of injured patients to be compensated for their injuries.
       For over 200 years, the authority to promulgate medical 
     liability laws has rested with the states. This system, which 
     allows each state autonomy to regulate the resolution of 
     medical liability actions within its borders, is a hallmark 
     of our American justice system. Because of the role they have 
     played, the states are the repositories of experience and 
     expertise in these matters. If enacted, H.R. 534 would pre-
     empt the rights of the states to continue to administer the 
     medical liability laws.
       Currently, states have the opportunity to enact and amend 
     their tort laws, and the system functions well. Congress 
     should not substitute its judgment for the systems that have 
     thoughtfully evolved in each state over time. To do so would 
     limit the ability of a patient who has been injured by 
     medical malpractice to receive the compensation he or she 
     deserves.
       The ABA is especially concerned about the provisions in 
     H.R. 534 that would place a cap on pain and suffering awards 
     in states that have no such cap. The ABA opposes caps on pain 
     and suffering awards which ultimately harms those who have 
     been most severely injured. Instead, the courts should make 
     greater use of their powers to set aside verdicts involving 
     pain and suffering awards that are disproportionate to 
     community expectations.
       Medical professional liability expenditures account for 
     less than two percent of national health care expenditures. 
     Provisions contained in H.R. 534 to cap non-economic damages 
     would not eliminate the less than two percent of health care 
     costs attributable to medical professional liability since 
     very few people are the subject of such caps. Any savings in 
     the cost of health care would be a small fraction of the less 
     than two percent figure.
       There is no question that malpractice premiums have risen. 
     The question is why. There is no evidence that the legal 
     system has caused the spike in rates. And there is no 
     evidence that caps will be effective in reversing the trend. 
     In fact, not even data provided by the AMA in June 2004 
     supports the idea that placing caps on damages can avert a 
     medical malpractice crisis in a particular state, or that 
     states that fail to enact caps are certain to have a crisis. 
     At that time, eight states that were listed by the AMA as 
     ``in crisis'' (Florida, Massachusetts, Mississippi, Missouri, 
     Nevada, Ohio, Texas, and West Virginia) had already enacted 
     caps on non-economic damage awards. Fourteen other states 
     that had such caps were, according to the AMA, ``showing 
     problem signs,'' and just six of the states that had enacted 
     caps were considered by the AMA to not be ``in crisis'' or 
     ``showing problem signs.'' This follows a June 2003 report by 
     Weiss Ratings, Inc., which found that caps on non-economic 
     damages have failed to prevent sharp increases in medical 
     malpractice insurance premiums, even though insurers enjoyed 
     a slowdown in their payouts.
       A July 2003 General Accounting Office study of the causes 
     of malpractice insurance increases found that, while 
     malpractice awards have contributed to increased premiums, 
     ``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.'' In fact, relevant 
     studies have since been released that analyze and challenge 
     the alleged link between the tort liability system and 
     malpractice premiums. Two notable studies suggest that the 
     issue is much more complex.
       One such study, in Texas, found no evidence to support a 
     link between rising malpractice premiums in Texas and the 
     frequency of claims and size of payouts, despite Texas voters 
     having passed a constitutional amendment in 2003 that sharply 
     restricted non-economic damages in medical malpractice 
     lawsuits. The Texas study was developed by researchers at 
     three major universities. An examination of the comprehensive 
     database of closed malpractice claims maintained by the Texas 
     Department of Insurance found that the number of paid 
     malpractice claims (adjusted for population growth) was 
     roughly constant between 1991 and 2002, the frequency of such 
     claims actually declined, the frequency of individual jury 
     awards in malpractice cases declined, and the percentage of 
     claimant verdicts showed no upward trend.
       Similarly, a study by the Kaiser Family Foundation showed 
     that capping damages in medical malpractice cases does not 
     reduce doctors' exposure to malpractice claims. The Kaiser 
     Family Foundation report on medical malpractice was released 
     on May 27, 2005. The report provides trend data for 
     malpractice claims. It shows that the total dollars in 
     physician medical malpractice claim payments remained 
     relatively constant during the period from 1991 to 2003 
     (13,687 in 1991, compared with 15,287 in 2003). The average 
     number of malpractice claims per physician declined 
     relatively steadily over the period.
       The American Bar Association analyzed the Kaiser Family 
     Foundation report's new state malpractice data (available at 
     http://www.statehealthfacts.org/r/malpractice.cfm) on the 
     number of paid claims per 1,000 physicians in each state in 
     2003, the latest year for which data is available. The chart 
     attached as Appendix ``A'' lists the number of claims per 
     1,000 active, non-federal physicians and shows whether the 
     state had caps on noneconomic or total damage caps in 2003. 
     This data shows the number of paid claims per 1,000 active 
     non-federal physicians is not related to whether a state has 
     caps on damages or not. For example, the average claims for 
     1,000 physicians ranged from a high of 30.5 in Indiana, which 
     had damage caps in 2003, to a low of 5 in Alabama, which did 
     not have caps on non-economic or total damage caps in 2003.
       It is obvious that those affected by caps on damages are 
     the patients who have been most severely injured by the 
     negligence of others. No one has stated that their pain and 
     suffering injuries are not real or severe. These patients 
     should not be told that, due to an arbitrary limit, they will 
     be deprived of the compensation they need to carry on. Yet 
     H.R. 534, if enacted, would result in the most seriously 
     injured persons who are most in need of recompense receiving 
     less than adequate compensation.
       On July 14, 2005, the Wisconsin Supreme Court, in a quite 
     lengthy and well-thought-out opinion, found caps in 
     malpractice cases to be unconstitutional. Ferdon v. Wisconsin 
     Patients Compensation Fund, et al., Case No. 2003AP988. As 
     part of its analysis of the issues, the Court noted that the 
     cap put in place ($350,000) was apparently based on the 
     assumption that the cap would help to limit the increasing 
     cost and possible diminishing availability of health care, 
     although the immediate objective was apparently to ensure the 
     availability of sufficient liability insurance at a 
     reasonable cost. Slip op. at 45. The Court found no rational 
     relationship between ``the classification of victims in the 
     $350,000 cap on non-economic damages'' and the equally 
     desirous objective of compensating victims fairly, both those 
     who suffer non-economic damages above and below the cap. Slip 
     op. at p. 50. The Court found that the cap is ``unreasonable 
     and unnecessary because it is not rationally related to the 
     legislative objective of lowering medical malpractice 
     insurance premiums'' and it creates an undue hardship on 
     those whose non-economic damages exceed the cap and is thus 
     arbitrary. Slip op. at pp. 49, 53. The Court came to its 
     conclusion after reviewing an analysis of studies done within 
     the state by the Wisconsin Commissioner of Insurance and of 
     studies outside the state. Slip op. at pp. 59-66.
       We urge you to vote no on H.R. 534.
       Sincerely,

                                            Miles J. Zaremski,

                                     Chair, ABA Standing Committee
                                on Medical Professional Liability.

        Medical Malpractice--Is MAG Mutual Gouging Its Doctors?

       Georgia's largest medical malpractice writer took in nearly 
     triple what it paid out.
       This gain is in addition to the $17,312,654 gain made by 
     investing its doctors' money.
       Insurance reform--not tort reform--is needed to reduce 
     medical malpractice premiums.
       Source: taken directly from the company's annual statement 
     for the year ending December 31, 2004. All data is from the 
     Five Year Historical Data Page: information on Net Paid 
     Losses is line 61, Net Premiums

[[Page 18300]]

     Written is line 12, and Net Investment Gain is line 14. 
     Dollar figure for investment gain represents total investment 
     multiplied by percentage of premiums written of total for the 
     state. Statement available at: http:naic.org/cis. MAG Mutual 
     Insurance Company is the largest insurer in Georgia with 
     42.3% of the market (AM Best).

  Mr. Speaker, I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I yield 6\1/2\ minutes to the 
gentleman from Georgia (Mr. Gingrey) the primary author of the bill 
itself.
  Mr. GINGREY. Mr. Speaker, I thank the gentleman from Texas (Mr. 
Smith) for yielding me the time.
  With all due respect to the distinguished ranking member, let me say 
that in response to his comments, this is a special interest bill. That 
is right. It is a special interest bill. It is a special interest bill 
for the American consumer of health care, for our patients. That is 
where the special interest is; not, Mr. Speaker, the insurance 
industry, not drug companies or manufacturers of medical devices.
  The insurance industry, of course, offers a broad range of products. 
It could be health insurance. It could be automobile insurance. It 
could be homeowners insurance. It could be an umbrella policy for 
general liability. And, yes, of course there is a product line called 
medical liability insurance.
  But let me tell you what is happening to the insurance industry in 
regard to that piece of their business. In my home State of Georgia, 3 
years ago we had 20 companies that offered that line of business. Today 
we have one. We have gone from 20 to 1, and that is a mutual company.

                              {time}  1345

  If these insurance companies were making out like bandits, as the 
other side of the aisle and the opposition to this commonsense bill are 
suggesting, then they would not be quitting the business in droves. 
They would be continuing to stay in the business and raising those 
premiums and making these tremendous profits.
  I do not know, Mr. Speaker, what is happening with the industry of 
insurance in regard to other product lines. The gentleman may be right 
on that. But in regard to this line of business, I can tell you they 
are losing money even when they have good returns on their investments, 
as did Mag Mutual in Georgia several years ago. In fact, the return on 
their very conservative investments, they are very restricted by the 
insurance commissioner in that very conservative portfolio of 
investments, returned them $7 million; but they still are losing money 
because of these outrageous claims and the expense of defending so many 
frivolous lawsuits.
  In regard, Mr. Speaker, to the drug companies and the manufacturers 
of medical devices that the distinguished ranking member mentioned, 
this bill would only relieve them of punitive damages, that is all, 
punitive damages, if it is shown that they did deliberately market a 
drug or a device that they knew was harmful to a patient and they 
deliberately withheld that information from the FDA. It does not 
relieve them of liability for being named in a lawsuit. It is only the 
punitive damages.
  If they are guilty of something like that, of withholding information 
deliberately, we went through this with the tobacco industry in regard 
to lung cancer, the punitive damages can be in the hundreds of millions 
and, maybe if it is a big Fortune 500 company, billions of dollars.
  So this is a distraction from the real problem. And the real problem, 
Mr. Speaker, is that we have an unlevel playing field. That is all it 
is. This bill, H.R. 5, the HEALTH Act of 2005, is not going to take 
away anybody's right to sue if they have been injured and to seek 
economic damages and payments for medical care for the rest of their 
lives.
  The gentleman from Texas explained to us that many of these cases in 
California, a State that since 1979 has had a cap on noneconomic so-
called ``pain and suffering'' at $250,000, these cases that he just 
talked about, $10 million, $20 million, $30 million worth of economic 
awards, people are not being denied access to that care, Mr. Speaker. 
This is only to balance the playing field so that we do not have this 
situation in this country where we are supposed to have the greatest 
health care in the world, and yet our specialists are dropping out. 
They are not delivering babies. They are not getting involved in high-
risk pregnancies. They are not manning emergency rooms. They are not 
doing newer surgery.
  Because of all the defensive practice of medicine, every specialist 
practices in two areas: his or her specialty and also the specialty of 
defensive medicine, and it is driving up the cost of health care and 
people cannot afford to get health insurance. That is all we are 
talking about here, Mr. Speaker, of leveling the playing field. It is 
not taking away anybody's right to sue. It is not denigrating or 
bashing the legal profession.
  Those attorneys who specialize in personal injury, most of them do a 
great job representing their clients well. My brother is an attorney. 
My daughter is an attorney. We are not here to bash the legal 
profession. But we just want to ask them to give us an opportunity to 
level this playing field to make it fair for everyone. And so this idea 
that the other side suggests that we are taking away anybody's rights 
is absolutely not true, Mr. Speaker.
  Let me say some of the things that this bill does do besides limiting 
noneconomic to $250,000. What it does, Mr. Speaker, is something called 
``collateral source disclosure.'' Current law did not allow a jury to 
know that a plaintiff in a malpractice case has health insurance or has 
a disability policy. So when they are calculating all of these economic 
losses and loss of wages, it is not known by the jury that maybe that 
disability policy gives them 80 percent of their earnings or their 
income for their whole life or that they have health insurance.
  The other thing, and I will conclude on this, Mr. Speaker, the other 
things this bill does is it stops this issue of joint and several 
liability where, when multiple defendants are named, the person, the 
doctor who has the deepest pockets, who may have had very little to do, 
if anything to do, maybe just walked down the corridor on a Saturday 
and said hello to the patient, but they happened to have the most 
insurance and the deepest pockets so they pay all of the claims.
  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentlewoman 
from New York (Mrs. Kelly), a subcommittee Chair of the Committee on 
Financial Services.
  Mrs. KELLY. Mr. Speaker, I rise today in support of H.R. 5. Listen to 
why. For many years, the world has come to New York for medical care. 
But between 1998 and 2002, 70 percent of New York's neurosurgeons, 60 
percent of the OB-GYNs in New York, 60 percent of New York's orthopedic 
surgeons, and 60 percent of the general surgeons in New York were sued.
  Mr. Speaker, it is impossible that all of these physicians were bad 
doctors. We can all agree that there are some physicians that may be 
better than others, but it would be difficult to come to the consensus 
that more than half of the physicians in several vital practice areas 
have performed this poorly.
  This is a problem. In New York, the average jury award increased from 
$1.7 million in 1994 to $6 million in 1999, which was an increase of 
350 percent. New York physicians are now paying 34 to 50 percent more 
in 2005 for the same insurance coverage they had in 2002. This is in 
part due to an across-the-board average rate increase of 7 percent for 
the 2004-2005 policy year. In 2001, six of the top eight medical 
malpractice awards in the United States came from New York courts. In 
2002, 7 of the top 10 jury verdicts in medical negligence cases were 
from New York courts. And in 2003, it was four of the top six.
  The cost is not just to the doctors. It is a cost we all ultimately 
share. There are steps this Congress can take in solving the problem. 
The HEALTH Act is a step that is both reasonable and fair. It is 
reasonable because it calls for a cap on unquantifiable damages. State 
laws that otherwise cap damages at

[[Page 18301]]

specific amounts, even at higher amounts than those provided in the 
HEALTH Act, would remain in effect. The act is fair when it allows for 
the full recovery of economic damages. In other words, when damages can 
be quantified, they are unlimited in the HEALTH Act.
  The HEALTH Act is going to help solve the national crisis we are 
seeing in medical malpractice. Without this legislation, doctors will 
not just leave the area where they practice; they will leave the 
profession. I urge support of the HEALTH Act.
  Today, I rise in support of H.R. 5--The HEALTH Act of 2005.
  Between 1998 and 2002, the largest insurer of physicians in New York 
state had: 70 percent of its neurosurgeons sued, 60 percent of OB-GYNs 
were sued, 60 percent of orthopedic surgeons were sued, and 60 percent 
of general surgeons were sued.
  Mr. Speaker, it is impossible that all of these physicians are bad 
doctors.
  We can all agree that there are some physicians who may be better 
than others--but it would be difficult to come to the consensus that 
more than 50 percent of physicians in several vital practice areas have 
performed this poorly.
  There is a problem.
  Just in New York, the average jury award increased from $1.7 million 
in 1994 to $6 million in 1999--an increase of 350 percent.
  New York physicians are now paying 34-50 percent more in 2005 for the 
same insurance coverage they had in 2002. This is in part due to an 
across the board average increase of 7 percent rate increase for the 
2004-05 policy year.
  In 2001, 6 of the top 8 medical malpractice awards came from New York 
courts.
  In 2002, 7 of the top 10 jury verdicts in medical negligence cases 
were from New York courts. And in 2003, it was 4 of the top 6.
  But, there are also steps that this Congress can take towards solving 
this problem.
  We have learned today that the HEALTH Act is a step that is both 
reasonable and fair.
  It's reasonable because it calls for a cap only on unquantifiable 
damages. State laws that otherwise cap damages at specific amounts, 
even at higher amounts than those provided in the HEALTH Act, would 
remain in effect under the HEALTH Act.
  The Act is fair where it allows for full recovery of economic 
damages. In other words, when damages can be quantified, they are 
unlimited under the HEALTH Act.
  The HEALTH Act will help solve the national crisis that we are seeing 
in medical malpractice liability insurance.
  Without this legislation doctors will not just leave the area where 
they practice, they will leave the profession. Patients, who are the 
real victims in this crisis, will be left to suffer and die because 
there is no one to provide the care.
  As a member of the Medical Malpractice Crisis Task Force, I ask my 
colleagues to recognize that there is a problem, and this legislation 
is one great step in the direction towards solving that problem.
  Please support the HEALTH Act of 2005.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I would just let the gentlewoman from New York (Mrs. 
Kelly) and the gentleman from Georgia (Mr. Gingrey) know about the 
General Accounting Office report that found there is no evidence that 
caps on damages have reduced losses or helped consumers. They found, 
instead, that the contention that premiums are rising because there is 
a surge in jury awards is a myth and that while premiums have increased 
claims payments of insurance companies have remained essentially flat.
  Mr. Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. 
Jackson-Lee), a member of the Committee on the Judiciary.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the distinguished 
ranking member, and I thank him for his continued leadership on this 
issue.
  It looks as if this is deja vu. We have been at this table for a 
number of years, and I am delighted that the gentleman from Georgia 
(Mr. Gingrey) cleared it up. When you have a daughter that is a lawyer, 
I know you have a great affection for lawyers. And I appreciate the 
fact that he recognizes that as physicians care for the sick, lawyers 
have to keep the doors of justice open. For that reason, if anyone gets 
up on the floor of the House and cites the number of lawsuits, 60 
percent of the doctors being sued, that has nothing to do with those 
cases that prevailed.
  Most Americans understand the distinction between frivolous lawsuits 
and so does the court system. But, really, what this bill is premised 
on is absolutely false, and Americans should know that because I have 
heard from so many with so many tragic incidents, amputated legs, 
individuals at hospitals who have died not because of what they went 
into the hospital for but because they caught an infection in the 
hospital.
  But as it relates to insurance and low rates, let me cite a study 
that is the prevailing trend in America. A new study by the former 
insurance commissioner of Missouri, Jay Angoff, shows that insurance 
companies are gouging doctors. The study shows that insurance premiums 
are skyrocketing, while payouts have remained flat or in some cases 
even decreased. There is no evidence that we are making a dent with 
this medical malpractice oppressive legislation--oppressive 
legislation, in insurance rates.
  In particular, it is a shame that when you have a tragedy in your 
family, someone who lost their life because of negligence, and there 
are three defendants, the general trend is that you go against the 
defendant with the deepest pockets. That defendant who is well-situated 
will go against the others who contributed to that terrible tragedy.
  Now, this bill locks the door, closes out the bus driver, the 
teacher, the nurse's aid, the oil refinery worker, absolutely closes 
them out. It also denies children who are innocent, under 18, enhanced 
economic damages. That was my amendment, to take away that cap of 
250,000, to take away that cap of 250,000 on noneconomic damages 
because we do not know long range with all these tables about what 
someone will be needing the rest of their life after they have been 
maimed, after they have been disabled, or after they have died and what 
their family will need.
  This is a tragic day because first of all this bill came to the floor 
with no committee work, no rules work of sorts, all amendments died; 
and we have failed. Herman Cole of Connecticut we have failed, whose 
wife slipped into a coma when in a procedure for a tubal ligation. Her 
blood pressure dropped dangerously and damagingly low and the doctor 
and anesthesiologist ignored the warning signs. What is he supposed to 
do? What is he supposed to do about his wife, Sadie, who is now in a 
vegetative state?
  This is a bad bill. I hope my colleagues will have enough courage to 
vote for those who have been injured and vote against special interest.
  Mr. Speaker, I rise in opposition to H.R. 5, the ``Medical 
Malpractice Bill.'' Not only is the overall bill bad, but the process 
in which the majority followed was flawed as well. This bill came 
straight to the floor and bypassed both committees of jurisdiction. 
This begs the question, ``what are the proponents of the bill so afraid 
of that they need to rush to the floor. Both the House Judiciary and 
Energy and Commerce Committees have been bypassed and this should not 
have been done on such an important piece of legislation. Given the new 
information that is available about the insurance industry gouging 
doctors, shouldn't the committees at least have had the opportunity to 
review the new information?
  Turning to the bill itself, it should be noted that this bill applies 
across the board to all cases, not just frivolous cases. It applies no 
matter how much merit a case has, or the extent of the misconduct of 
the hospital, doctor or drug company. The bill applies regardless of 
the severity of the injury. Those most hurt by the bill are the most 
catastrophically injured. In addition, it undermines our constitutional 
right to trial by jury. The bill limits the power and authority of 
jurors to decide cases based on the facts presented to them. Washington 
politicians should not be making these decisions--juries should.
  This legislation also reduces the accountability of hospitals, 
nursing homes, HMOs and drug companies. This will hurt patient safety. 
Patient safety must come first. We should be cracking down on the small 
number of doctors responsible for most of the malpractice. This will 
reduce both incidents of malpractice and lawsuits. Doctors and 
hospitals must be required to tell their patients or the patients' 
families when they know they have made a medical error, rather than 
allowing them to keep their mistakes secret.

[[Page 18302]]

  This bill completely ignores the insurance industry's major role in 
the high price of medical malpractice insurance premiums. We must 
protect the legal system and make it accessible for everyone seeking 
justice, accountability and adequate compensation for devastating 
injuries or death.
  In discussing the flaws of this bill, I would be remiss if I did not 
take a moment to mention some of the families who have survived medical 
malpractice.
  Kim and Ryan Bliss of Florida, whose 8\1/2\-month-old daughter died 
when the doctor inserted an adult IV in her jugular and caused an air 
bubble to go directly into her bloodstream.
  Herman Cole of Connecticut, whose wife slipped into a coma when, 
during a procedure for tubal ligation, her blood pressure dropped 
dangerously and damagingly low and the doctor and anesthesiologist 
ignored the warning signs. Herman's wife Sadie has been in a vegetative 
state ever since.
  Diane Meyer of Nevada, who was diagnosed with kidney stones and was 
sent home to pass them, despite the fact that one was too large and was 
poisoning her body from within. Doctors later discovered this but 
failed to call Diane, who then slipped into a coma and later had to 
have both legs amputated below the knee.
  Mark Unger of Oregon, whose mother was diagnosed with Burkitt's 
lymphoma in early 2001 and was injected with 1000 times more 
methotrexate than the appropriate dosage by a doctor who did not follow 
protocol. Mark's mother passed away in April 2001.
  John McCormack of Massachusetts, whose 13-month-old daughter died 
while awaiting surgery to repair a malfunctioning shunt in her skull, 
while the attending physician slept through repeated pages because his 
beeper was set to vibrate and didn't wake him, leaving two neurosurgery 
residents in charge of her care.
  Deborah Gillham of Maryland, who suffered injury when, during a 
routine laparoscopic procedure to look for a cyst on her left ovary, 
her physician punctured her colon.
  Before closing, let me take a moment to speak on two amendments I 
would have offered had the rule not been so restrictive. My first 
amendment would have eliminated one of the many egregious provisions in 
the bill. In essence, it would eliminate the one-size-fits-all limit on 
awards for non-economic loss (i.e. pain and suffering damages) of 
$250,000. Typically, such damages exceed $250,000 only in cases 
involving catastrophic injuries such as deafness, blindness, loss of 
limb or organ, paraplegia, severe brain damage or loss of reproductive 
capacity. Limiting patients' rights to sue for medical injuries would 
have virtually no impact on the affordability of malpractice coverage. 
States with little or no tort law restrictions experience the same 
insurance rates as states that have enacted tort restrictions.
  My second amendment also focused on the $250,000 cap for non-economic 
loss (i.e. pain and suffering damages). This amendment would have 
carved out an exception for plaintiffs or a person(s) representing a 
minor. In summary, the $250,000 cap for non-economic loss (i.e. and 
suffering damages) would not apply with respect to an injury to an 
individual who is under 18 years of age. Minors are more vulnerable in 
regards to injuries they suffer and the consequences of those injuries. 
Furthermore, the impacts of an injury suffered by a minor due to 
malpractice will be felt for a much longer time period than for an 
adult. This is especially true of children who suffer injuries at birth 
due to malpractice. These children will more likely have to suffer the 
consequences of these injuries for the rest of their lives.
  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman 
from Wisconsin (Mr. Green), a member of Committee on the Judiciary and 
an expert on this subject.
  Mr. GREEN of Wisconsin. Mr. Speaker, 10 years ago, like so many 
States, Wisconsin was facing a medical liability crisis, not just 
because medical liability premiums were soaring, not just because 
insurance carriers were discontinuing the sale of medical liability 
insurance, but because too many physicians felt forced to leave their 
practice, leave their specialty, or leave the State for a more 
affordable State.
  But 10 years ago in Wisconsin, we figured out a reasonable answer. I 
led the fight to create a new medical liability system where injured 
parties receive every single dollar of economic damages to which they 
are entitled. But where there is a modest cap on noneconomic damages, 
things like pain and suffering, loss of society, loss of companionship, 
you know what? It worked.
  We hear a lot about studies here. We know as a fact in Wisconsin it 
worked. In a short period of time, Wisconsin became one of only six 
States not to have a medical liability crisis. As a result, as the 
State medical society reported, physicians, especially those in high-
risk specialties, actually moved into our State from States like Ohio 
and Pennsylvania and Florida and Illinois. It worked.
  But, sadly, Mr. Speaker, my State recently lost its way. Even though 
by any reasonable measure our reforms work, the Wisconsin courts struck 
them down. We can only hope that Wisconsin enacts a new medical 
liability reform act. But until then, we should pass the HEALTH Act. It 
will not only help Wisconsin doctors and patients but those in every 
State facing a medical liability crisis.
  This bill is State-friendly. It does not preempt State reforms. If a 
State like Wisconsin has a cap on noneconomic damages, whether that cap 
is higher or lower, that cap will take effect. More important, it is 
doctor-friendly. It is patient-friendly. It will help us get a handle 
on at least a small portion of our health care costs. It will encourage 
doctors to continue to practice in vital specialties, and it will 
attack defensive medicine. I urge support for the HEALTH Act.

                              {time}  1400

  Mr. CONYERS. Mr. Speaker, I am pleased to yield 3\1/2\ minutes to the 
gentleman from Virginia (Mr. Scott), a distinguished member of the 
Committee on Judiciary.
  Mr. SCOTT of Virginia. Mr. Speaker, I thank the gentleman for 
yielding me this time.
  One of the problems we are going to have during this debate is the 
fact we are here under a closed rule. We will not have the ability to 
highlight or fix the shortcomings of the bill, so we will go back and 
forth on sound bites. We have already heard that this has been 
described as a proconsumer bill, notwithstanding the fact that I am not 
aware of any recognized consumer group that is supporting it.
  Mr. Speaker, we say we have lost doctors because of the malpractice 
crisis, but we did not say anything about the reimbursement rates for 
some specialties, who are not getting paid as much, nor is there a 
suggestion that tort reform has actually produced more doctors. Because 
we have the same list of ineffectual initiatives that we have had in 
other tort reform bills, reducing victims' rights without doing 
anything with malpractice rates, we will try to discuss the provisions 
of the bill.
  First, the rule rejected the alternative offered by the gentleman 
from Michigan (Mr. Conyers) and the gentleman from Michigan (Mr. 
Dingell) that would have actually reduced malpractice costs and helped 
underserved areas without going overboard in helping and relieving from 
liability the HMOs and pharmaceutical companies, which means that the 
doctors will have to pay more of the responsibility for malpractice. We 
cannot consider that.
  But let us come to the specifics. This legislation preempts State 
law. The National Conference of State Legislators has already 
considered this bill, and they have rejected it. Their opinion, the 
National Conference of State Legislators, have suggested this bill will 
make matters worse.
  We have caps on damages, not on damages for wages and things like 
that, but for elderly, for children, for those who are without lost 
wages, they will be hurt. Incredibly, the cap on damages has not been 
shown to do anything about malpractice premiums. Those States with caps 
are paying the same malpractice premiums as those without caps.
  We have heard about this fair share provision that says everybody 
just pays their fair share or more. Mr. Speaker, what we are talking 
about here is a group with insurance, and which insurance company will 
pay. Some States have dealt with this and said if a doctor is at least 
60 percent responsible, he can be held fully responsible, but for 
others, maybe you can have a fair share. This says everybody involved. 
In other words, you have to

[[Page 18303]]

go after each and every physician, with a separate case against each 
and every one for every 1 or 2 percent responsibility they have. We 
have had the problem of having to sue so many doctors. Well, this 
requires you to sue each and every doctor.
  We have heard about the collateral source rule; that if you have 
insurance, and listen up small businesses, if you are providing health 
care for your employees, and you have an employee who gets into a 
malpractice-induced coma, and somebody has to pay it, and your employee 
has gotten a recovery from the malpractice insurance, if the small 
business is paying the responsibility, the physician, the guilty party, 
will get credit for all of your health insurance, and you are going to 
have to continue to pay under that health insurance.
  We limit attorneys' fees in this legislation, which will do nothing 
to reduce malpractice premiums. We have different statutes of 
limitations, which will confuse people, and lawyers will miss the 
filing deadlines because of all this confusion.
  We need insurance reform which will reduce premiums, not just attack 
victims. We need worthwhile legislation that will reduce the premiums. 
This will not do it. We need to defeat the bill.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 30 seconds.
  Mr. Speaker, opponents of reform claim that the current crisis is 
driven by a small number of so-called bad doctors. But as Yale Medicine 
Professor Dr. Robert Auerbach has explained, ``The American Trial 
Lawyers Association has perpetrated myths on the American public, 
including the myth that a very small proportion of all physicians are 
responsible for the majority of claims. This is a sort of statistical 
magic, because, unfortunately, a small proportion of the physicians in 
high-risk specialties, such as obstetrics and gynecology and 
neurosurgery, are responsible for a disproportionate number of the 
claims.''
  Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. 
Burton), former chairman of the Committee on Government Reform.
  Mr. BURTON of Indiana. Mr. Speaker, I thank the gentleman for 
yielding me this time.
  First of all, I am for medical malpractice reform. I think it is 
extremely important we address this issue. However, I have a real 
problem with this bill. In section 7, item (c), under punitive damages, 
it in effect will protect the pharmaceutical industry against class 
action lawsuits by parents who have had their children damaged by 
mercury in vaccines that causes neurological problems, such as autism.
  We had hearings on this for about 6 years, and we had scientists from 
all over the world, and the mercury in vaccines is a contributing 
factor to autism and other neurological disorders in children. It is in 
adult vaccines as well.
  Now, I will not go into specifics of the language in here, but 
according to attorneys I have talked to in the last couple of days, it 
protects the pharmaceutical companies against class action lawsuits. I 
would not have a problem with that if there was another avenue for 
these parents to go to get money.
  We created the Vaccine Injury Compensation Fund to take care of that. 
It was supposed to be nonadversarial. Unfortunately, parents have 
gotten nothing out of the Vaccine Injury Compensation Fund, even though 
there is $3 billion there. So there is only one avenue they have, and 
this legislation, the way I read it, blocks that.
  The gentleman from Florida (Mr. Weldon) has worked with me on this, 
and I think he shares some of the same concerns that I have, and he is 
welcome to say a word or two if he wants to, but what I want to ask of 
the manager of the bill, would the gentleman work with me to try to 
clean this up so that that problem does not exist anymore; so they at 
least have an avenue to deal with this?
  Mr. SMITH of Texas. Mr. Speaker, will the gentleman yield?
  Mr. BURTON of Indiana. I yield to the gentleman from Texas.
  Mr. SMITH of Texas. Mr. Speaker, the gentleman and I have spoken 
about this before. I happen to think that the problem lies with current 
law and not with this particular piece of legislation. But in any case, 
I share the gentleman's concerns and will work with him to address 
those concerns as this bill progresses to conference committee.
  Mr. BURTON of Indiana. Mr. Speaker, I thank the gentleman for his 
assurances.
  Mr. WELDON of Florida. Mr. Speaker, will the gentleman yield?
  Mr. BURTON of Indiana. I yield to the gentleman from Florida.
  Mr. WELDON of Florida. Mr. Speaker, I appreciate the gentleman's 
yielding to me, and let me just add to what the gentleman was saying. 
There is a lot of active research on this, and the research is not 
conclusive, so we do not need to act right now.
  Mr. BURTON of Indiana. Mr. Speaker, I thank my colleague.
  Mr. Speaker, I wish to submit for the Record a Dear Colleague letter 
which I sent to Members regarding this legislation:

                                    Congress of the United States,


                                     House of Representatives,

                                    Washington, DC, July 27, 2005.

  The Vaccine Liability Waiver in the Medical Malpractice Legislation 
             Will Hurt Autistic Children and Their Families

       Dear Colleague: As we debate medical malpractice this week, 
     I want to bring to your attention a provision in the bill 
     that would waive vaccine manufacturer liability. Section 7(c) 
     of the legislation states that no punitive damages may be 
     awarded against a manufacturer or distributor of a medical 
     product based on a claim that the product caused harm, unless 
     the company violated FDA regulations. Essentially, this means 
     as long as the vaccine goes through the regular FDA approval 
     process, the company is shielded from liability.
       In the 1980's, roughly 1 in 10,000 American children were 
     diagnosed with some kind of autism spectrum disorder. Today, 
     that number has risen to 1 in 166 with the number rising 
     alarmingly as children have been required to get more and 
     more shots containing the mercury-based preservative 
     thimerosal During my tenure as Chairman of the House 
     Committee on Government Reform, and as Chairman of the 
     Subcommittee on Human Rights and Wellness, I chaired numerous 
     hearings examining the alarming increase in autism in this 
     country over the last several decades. We also conducted a 
     four-year long investigation into the facts and theories 
     surrounding the connection between mercury in vaccines 
     (thimerosal) and autism and other childhood and adult 
     neurodevelopment disorders, such as Alzheimer's. Credible 
     scientific evidence points to a connection between 
     thimerosal, autism and other neurodevelopmental disorders.
       Many of the families of thimerosal's victims did not know 
     about the National Vaccine Injury Compensation Program--the 
     no-fault compensation system that provided for quick and fair 
     recovery for those who experience injuries related to a 
     vaccination which Congress established in 1986--and were 
     unable to file claims within the 3 year Statute of 
     Limitations. Thousands of families were left out in the cold, 
     unable to get into the program. They are out there with 
     nothing. Their houses are being sold, they are going 
     bankrupt, they are spending all their money and leading 
     desperate lives trying to help their kids, and they cannot do 
     it. Therefore, the only recourse they had was to file a class 
     action lawsuit.
       As the number of thimerosal injured children grew, concerns 
     over the potential financial impact of these class action 
     lawsuits, and the growing scientific research demonstrating a 
     connection between thimerosal and autism, and the subsequent 
     effect on the pharmaceutical industry's bottom line prompted 
     supporters of the Pharmaceutical industry to slip sections 
     1714 through 1717 into the Homeland Security Act of 2002 
     effectively killing all thimerosal class action lawsuits. In 
     the 11th hour without any debate, without anybody knowing 
     about it until it was too late, these lawsuits were stopped 
     in their tracks.
       Fortunately, the language was ultimately removed after 
     being discovered by several deeply concerned Members of both 
     the House and Senate. Section 7(c) of the Help Efficient, 
     Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2005 
     (H.R. 5) is arguably a thinly veiled attempt to resurrect the 
     ill-conceived Homeland Security Act provisions of 2002, and 
     although Section 10 of the bill exempts vaccine cases before 
     the National Vaccine Injury Compensation Program, if a 
     vaccine claimant exercises his or her right to opt-out of 
     VICA and bring a lawsuit in state or Federal court or has no 
     recourse but to file a lawsuit because of the Statute of 
     Limitations, Section 7(c) of H.R. 5 will fully apply to limit 
     that civil claimant's rights.
       Congress should strike this provision from the medical 
     malpractice legislation. We serve the interests of the 
     American people, not the pharmaceutical industry.

[[Page 18304]]

       Sincerely,
                                                       Dan Burton,
                                               Member of Congress.

  Mr. CONYERS. Mr. Speaker, I am pleased now to yield 3 minutes to the 
gentleman from New York (Mr. Nadler), a distinguished member of the 
Committee on the Judiciary.
  Mr. NADLER. Mr. Speaker, the Republicans have demonstrated that they 
either do not have a plan to fix the problem of the uninsured, or they 
simply do not care. Instead, they drag out the same tired giveaways to 
insurance companies year after year while trampling on the rights of 
consumers and patients.
  This bill is a perfect example. It does nothing to address the real 
causes of rising malpractice rates, but instead protects insurance 
companies from their own poor business practices. It protects the 
pharmaceutical companies. It protects the manufacturers of medical 
devices. It protects everyone except the victims of medical 
malpractice.
  We are told the bill is necessary to drive down insurance rates 
because juries are awarding too much money to plaintiffs. But the fact 
is lawsuits account for less than 2 percent of health care costs, as 
they always have, according to CBO. The average jury award has hardly 
increased at all in the last decade. In the last year, claims payments 
have decreased, gone down, by 9 percent, according to HHS, yet 
insurance premiums continue to rise.
  So where is the crisis? Not in huge runaway juries and not in 
exorbitant awards. Yet we have here a spectacular assault on the rights 
of consumers and patients. A cap on noneconomic damages of $250,000 
might have been reasonable in 1975 when it was first imposed in 
California, but today, and with increasing inflation, it is worth less 
and less.
  When we considered this bill in committee last year, I offered 
amendments to raise the cap to $1.5 million, or at least to index it to 
inflation so it does not get inflated down to worthlessness. Party line 
vote: Cannot do that.
  But the biggest weakness of this bill is that it will not work. 
Anyone who thinks insurance rates will go down as a result of this bill 
is being sold a bill of goods. This bill merely hopes the insurance 
executives will, out of the goodness of their hearts, reduce the rates 
they charge doctors. But there is no mechanism to guarantee this. 
Instead, the bill will simply lead to higher bottom lines for the 
insurance companies and protect the careless insurance companies and 
the careless manufacturers.
  Every attempt by Democrats to mandate that savings be passed along to 
doctors in the form of lower rates was voted down by the Republicans. 
Mr. Speaker, we should not be misled by this bill's supporters. Do not 
believe for a second that insurance rates will go down as a result of 
this bill. This bill should be seen for what it is: a gift from the 
Republican majority to the big insurance companies at the cost of 
patients' rights, and deluding the doctors and the health care 
practitioners who are being led down the garden path.
  If it were meant to help them, why do the Republicans refuse to put 
into this bill a provision that mandates that the savings that this 
bill will supposedly accomplish, at least some of those savings, are 
passed along to doctors in the form of lower malpractice rates? It will 
not happen.
  The true thing we should do is to crack down on the 1 or 2 percent of 
doctors who cause 90 percent of the insurance claims who should not be 
practicing medicine, and better regulate the insurance companies. That 
is what we should do to solve this problem. Instead, we have this feel-
good bill that will injure already injured patients and will do nothing 
for the doctors.
  Mr. SMITH of Texas. Mr. Speaker, I yield 30 seconds to the gentleman 
from Georgia (Mr. Gingrey).
  Mr. GINGREY. Mr. Speaker, the last two commentators in opposition to 
this bill talked about the biggest problem with this bill being the 
lack of consumer protection.
  I am going to tell my colleagues that the biggest consumer protection 
in this bill is limitation of contingency lawyer fees. When a person is 
injured severely, they ought to walk out of that courtroom at the end 
of the day with the preponderance, the largest portion, of that 
judgment in their pocket and not in the pocket of the lawyers. And that 
is consumer protection at its very best.
  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman 
from Florida (Mr. Keller), a valued member of the Committee on the 
Judiciary.
  Mr. KELLER. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  I support common-sense medical liability reform because it will 
increase patients' access to lifesaving health care, and it will save 
taxpayers over $30 billion a year in unnecessary defensive medical 
tests.
  Let me give a real-life example. The Orlando Regional Medical Center 
is a large hospital located in the heart of my district in Orlando, 
Florida. It is home to the only Level I Trauma Center in central 
Florida which specializes in treating patients with severe brain and 
spine injuries.
  Unfortunately, this important trauma center is in danger of closing 
because we only have a handful of neurosurgeons left in Orlando, and 
they cannot afford to pay the medical liability insurance premiums of 
over $250,000 a year. As a result of this liability crisis, this top-
rated trauma center had no choice but to turn away over 1,000 patients 
last year.
  Now, what happens when neurosurgeons are not available? We do not 
have to guess. I personally met with Mrs. Leanne Dyess, who testified 
before the Committee on the Judiciary. Her husband, Tony Dyess, 
suffered a very serious head injury in a car accident. The family had 
excellent medical insurance. What they did not have a was a 
neurosurgeon. All the neurosurgeons in her area had left town because 
they could not afford the liability insurance. As a result, it took 6 
hours to transport Mr. Dyess to a different location, but it was too 
late. He needed to be treated within the first hour. Mr. Dyess is now 
permanently brain damaged. He is unable to communicate, work, or to 
provide for his family.
  Mr. Speaker, some opponents of this legislation say it is not 
Congress' problem, let us just leave it up to the States. Well, it is 
our problem, because the U.S. Department of Health and Human Services 
estimates that this legislation will save taxpayers over $30 billion a 
year by avoiding unnecessary medical tests which are ordered by doctors 
under Medicare and Medicaid because of defensive medicine.
  It does not have to be that way. Neurosurgeons in California, where 
they have a $250,000 cap, pay an average of only $59,000 a year in 
liability insurance, not the $250,000 they pay in Orlando, Florida. Let 
us bring common sense back to our health care system and give patients 
access to trauma centers and neurosurgeons.
  Mr. Speaker, I urge my colleagues to vote yes.
  Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from New 
York (Mr. Weiner), a valuable member of the Committee on the Judiciary.


                        request to amend h.r. 5

  Mr. WEINER. Mr. Speaker, I move by unanimous request that we amend 
H.R. 5 to include a cap on premium increases for the duration of the 
bill.
  The SPEAKER pro tempore (Mr. Latham). The Chair cannot entertain that 
request at this time.


                        Parliamentary Inquiries

  Mr. WEINER. Mr. Speaker, parliamentary inquiry. I am making a 
unanimous consent request.
  The SPEAKER pro tempore. Would the gentleman restate his request?
  Mr. WEINER. Certainly. My unanimous consent request is that H.R. 5 be 
amended by unanimous consent, the consent here of both the majority and 
the minority, that premium increases, health insurance premium 
increases, be limited to zero for the duration of the period of this 
bill.
  The SPEAKER pro tempore. The Chair will have to see the gentleman's 
amendment to see if it meets the Speaker's guidelines for recognition.
  Mr. FRANK of Massachusetts. Parliamentary inquiry, Mr. Speaker.
  The SPEAKER pro tempore. The gentleman will state his inquiry.

[[Page 18305]]


  Mr. FRANK of Massachusetts. Mr. Speaker, I would ask to what 
guidelines the gentleman refers. I know there have been guidelines 
about bringing a bill up at all, but I am not aware of any guidelines 
that govern the deliberations of a bill once it has been brought 
forward. Could the Speaker enlighten us as to what guidelines he is 
discussing?
  I am not aware of guidelines that deal with the bill once it is 
before us. I understand they have dealt with whether or not you 
consider the bill.

                              {time}  1415

  The SPEAKER pro tempore (Mr. Latham). It would be inappropriate for 
the chair to entertain a unanimous consent request for the 
consideration of a nongermane amendment absent conformity with the 
Speaker's guidelines.
  Mr. FRANK of Massachusetts. Mr. Speaker, further parliamentary 
inquiry. Would someone point to the rule of the House? First, Mr. 
Speaker, I must say ``inappropriate'' does not seem to me to be a 
parliamentary term. Something is either in order or it is out of order. 
Appropriateness may deal with etiquette, it may deal with how well 
Members are dressed and how nice they look, but I understood under 
parliamentary procedure you are either in order or not in order. Would 
someone refer to me the section of our rules, Jefferson's Manual, which 
talks about appropriateness?
  The SPEAKER pro tempore. If the gentleman would approach the Chair, 
the Chair will gladly point out the rule.
  Mr. FRANK of Massachusetts. Mr. Speaker, why would I have to approach 
the Chair? This is a public forum. I believe this notion of 
appropriateness is a gloss on the rules that does not exist. Can we not 
have a citation to the rule of appropriateness?
  The SPEAKER pro tempore. The guidelines are carried in section 956 of 
the House Rules and Manual.
  Mr. FRANK of Massachusetts. Mr. Speaker, further parliamentary 
inquiry. We are told that these guidelines supersede the rules, during 
the consideration of a bill that unanimous consent is not in order? I 
had not previously heard that. Further, I understood they dealt with 
whether or not Members were recognized. Once recognized, as the 
gentleman from New York was, I am not aware of any restriction on what 
the gentleman can do as long as it is within the rules. Those 
guidelines dealt with recognition, as I understood it.
  The SPEAKER pro tempore. Recognition for unanimous consent requests 
is at the discretion of the Chair following the guidelines followed by 
several successive Speakers.
  Mr. WEINER. Mr. Speaker, further parliamentary inquiry. Is the Chair 
ruling a unanimous consent request which expresses the unanimous desire 
of the House of Representatives, is the Chair refusing that to be put 
to the body?
  The SPEAKER pro tempore. The Chair will reiterate that conferral of 
recognition for a unanimous consent request is at the discretion of the 
Chair according to the Speaker's guidelines.
  Mr. FRANK of Massachusetts. Mr. Speaker, further parliamentary 
inquiry. Does that mean any unanimous consent request to amend a bill 
is out of order unless it meets what standard? Could the Chair 
enlighten us as to how one would become in order?
  The SPEAKER pro tempore. A unanimous consent request for the 
consideration of a nongermane amendment would have to have received 
clearance by the majority and minority floor and committee leaderships. 
The Chair has not seen the gentleman's amendment and is unaware of such 
clearance.
  Mr. WEINER. Mr. Speaker, further parliamentary inquiry. Is the 
concern that it is not in proper form? There has not been a point of 
order that it is not germane.
  The SPEAKER pro tempore. It is a matter of recognition.
  Mr. WEINER. Mr. Speaker, I have been recognized, so that is not the 
issue. Is the issue the form of the unanimous consent request?
  The SPEAKER pro tempore. If the gentleman would submit his amendment, 
the Chair would examine it.
  Mr. WEINER. Mr. Speaker, if I can be further heard on the unanimous 
consent request, and I believe the paperwork is on the way, it is a 
very simple matter. The sponsor of the legislation says he wants to do 
what is right for consumers. Over and over we have heard the connection 
between the legislation and reducing premiums. All I am saying is, if 
we all agree upon that, let us include the language herein.
  The SPEAKER pro tempore. Is the gentleman making a parliamentary 
inquiry?
  Mr. WEINER. No, I want to be heard on my unanimous consent, and I was 
recognized.
  The SPEAKER pro tempore. The Chair has not recognized the gentleman 
from New York (Mr. Weiner) on his unanimous consent request. The 
gentleman is, however, recognized for the time yielded to him.
  Mr. WEINER. Mr. Speaker, I still have a unanimous consent that is, I 
believe, in the hands of the Parliamentarian now.
  Mr. Speaker, I withdraw my unanimous consent request.
  The SPEAKER pro tempore. The gentleman from New York (Mr. Weiner) 
withdraws his unanimous consent request.
  The gentleman from New York (Mr. Weiner) is recognized for 3 minutes.
  Mr. WEINER. Mr. Speaker, I think all of the assembled 
Parliamentarians, staffers, the histrionics of the other side, the 
apoplexy over the idea that perhaps we might actually reduce premiums 
is fairly instructive to this debate.
  We had no hearings on this. We had no chance to mark it up. We had no 
chance to include a reduction in premiums.
  The gentleman from Georgia said this is a pro-consumer thing. If you 
really wanted it to be pro-consumer, you would reduce premiums. I would 
ask any Member on the other side of the aisle who supports this bill to 
simply say, We do not really care about reducing premiums.
  Mr. Speaker, who we are fighting for in this bill is the insurance 
industry; they are getting protected. The HMOs, they are getting 
protected. The pharmaceutical companies, that is who is being protected 
by H.R. 5. But, frankly, do not deceive the American public by what 
this bill will do.
  Insurance prices will not go down. Do Members know how we know this? 
First of all, the industry themselves have said in public that they 
have no intention of reducing premiums if this legislation is passed. 
We can look at other States that have caps. Find me one where insurance 
premiums went down. Look at California, ask them whether their premiums 
have gone down.
  Frankly, the only way we know for sure that premiums will go down is 
to cap the premiums, but you will not do that. Not only will you not do 
that; you will do everything possible to avoid even considering it. 
That is why committee was bypassed.
  And do not also say that doctors are going to face fewer claims as a 
result of this legislation. They are already seeing fewer claims since 
they did in 2001. There were 25 per 1,000 physicians in 2001. There are 
19 per 1,000 physicians in 2003. If we had a hearing in committee, we 
might find out what it is this year. You cannot say that, and you also 
cannot say this: you cannot say the amount being paid out in claims 
against physicians has reduced in States where there are caps.
  You want us to be a Nation where there are caps. Let us look at the 
States where the caps are in place. The lowest number of claims per 
1,000 physicians is in a State that does not have a cap, and the 
highest are among the States that do have the caps. What this issue is 
really all about, it is about who you all are fighting for and who we 
are fighting for.
  You are fighting to take away the right of a jury. Your citizens, 
your constituents who apparently are brilliant enough to elect you, but 
not smart enough to solve a case that deals with medical malpractice, 
you are taking the right of a family who wants to take on a 
megapharmaceutical company or a mega-HMO, and the only way they

[[Page 18306]]

can bring that suit is to make sure they get enough money out of that 
company that they learn the lesson and they do not do it again.
  Mr. Speaker, there is some irony here. You control the legislature, 
you control the executive, you control the judiciary, and still you do 
not trust any of those people to make the decisions. Only you know how 
much each and every one of these cases will yield.
  Mr. Speaker, I have an alternative idea: get rid of the bad doctors, 
get rid of the bad lawyers, get rid of the bad judges, and get rid of 
this bad bill.
  Mr. CONYERS. Mr. Speaker, I yield to the gentleman from Massachusetts 
(Mr. Frank) for a unanimous consent request.


                       Request to Offer Amendment

  Mr. FRANK of Massachusetts. Mr. Speaker, I ask unanimous consent to 
offer an amendment which is in writing at the desk and is germane.
  The SPEAKER pro tempore. The Clerk will report the amendment.
  The Clerk read as follows:

       Mr. Frank moves to strike on page 11 lines 10 through 25 
     and page 12.

  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Massachusetts?
  Mr. SMITH of Texas. Mr. Speaker, I object to the unanimous consent 
request.
  The SPEAKER pro tempore. Objection is heard.
  Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from 
Massachusetts (Mr. Frank).
  Mr. FRANK of Massachusetts. Mr. Speaker, the amendment I sought to 
offer which was kept out by an objection from the bill's manager would 
have dealt with the section referred to by the gentleman from Indiana. 
I also, like the gentleman from Indiana, am prepared to vote for, as I 
have in the past, some restrictions on medical malpractice.
  But what we have in this bill which has not gotten a lot of 
attention, and the gentleman from Indiana pointed it out, is a total 
exemption from punitive damages for drug manufacturers who get an FDA 
approval even though we have seen flaws in the FDA approval process.
  What the majority has now made clear, they are insisting that this be 
taken in whole. The gentleman from Indiana made a good point, an 
objection to this amendment, and I share his objection. What I do not 
share is his faith that this is going to be taken care of.
  The gentleman from Indiana, my good friend, was uncharacteristically 
mellow today in accepting an assurance that this will be looked at. I 
agree it will be looked at. It will be held up to the light. It will be 
turned upside down, and it will be looked at and looked at and looked 
at until it is signed into law, and then people will still be able to 
look at it as the law and those drug companies will have that 
exemption.
  So what I offer today, and one might have thought under democratic 
procedures this would have been allowed, was simply to vote on that. I 
was, in the spirit of bipartisanship, acting on the suggestion of the 
gentleman from Indiana. Forget about everything said about medical 
malpractice; the amendment I sought to offer and was blocked from 
offering by that objection, as we were by the Committee on Rules' 
heavy-handedness, simply would have allowed this body to decide whether 
as part of a medical malpractice bill you would give an exemption from 
punitive damages to drug companies. That is not medical malpractice. 
That is not related to the core of this bill. The majority will not 
even allow this to be discussed.
  I think it is wrong to give that kind of exemption certainly without 
a lot more consideration, but what is even more wrong is this further 
abuse of power. The majority simply will not allow this House, like the 
gentleman from Indiana, elected representatives of the people, to 
decide on whether or not we give an exemption to the drug 
manufacturers.
  They take medical malpractice, a sympathetic issue, and use it to 
cloak immunity for the drug manufacturers in part, and then arrogantly 
refuse to allow the House to vote on it.
  Mr. Speaker, I will say what I have said before. We are working with 
the people of Iraq and we are trying to get them to implement 
democracy. To the extent anyone from Iraq is watching the proceedings 
here, I would say to them, Please do not try this at home. Please do 
not, in the Iraqi Assembly, show the contempt and the disregard and the 
arrogance for minority rights and democratic procedures, and maybe 
majority rights. I should amend this. They are not afraid of minority 
rights; they are afraid if we had an open and honest vote on this that 
a majority would decide not to let the drug companies carry out under 
that darkness.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 10 seconds.
  Mr. Speaker, I want to say I appreciate the gentleman from 
Massachusetts (Mr. Frank), who just spoke, voting for this legislation 
in the last Congress.
  Mr. Speaker, I yield 2 minutes to the gentlewoman from Pennsylvania 
(Ms. Hart), a former member of the Committee on the Judiciary and now a 
member of the Committee on Ways and Means.
  Ms. HART. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Mr. Speaker, I rise in support of the HEALTH Act. It is called the 
HEALTH Act for a very good reason. It is going to help a number of 
people who now are finding it very difficult to have access to health 
care.
  We have considered this bill twice in the last Congress, I believe 
once in the first Congress when I was here, and objecting to this as 
unfamiliar to Members is simply disingenuous. This issue is so well 
known, not only to Members, but to the general public, that it scores 
as one of the most important issues when asked nationwide what we need 
to address.
  The other side of the aisle suggested we deal with bad doctors, bad 
lawyers, and bad judges. Well, bad doctors, bad lawyers, and bad judges 
are regulated by the States. The problem is that medical malpractice 
reform should have been dealt with by the States, but my State of 
Pennsylvania has not handled the problem. Many States have not acted to 
deal with this problem and avert further crisis.
  Patients needing care face a real crisis in access to care. The wait 
is too long, the cost is too high. Physicians are quitting because of 
the high cost of medical malpractice insurance. From 2003 to 2004, 
Pennsylvania doctors faced double-digit medical malpractice insurance 
increases. The reason: out-of-control lawsuits.

                              {time}  1430

  According to the National Medical Practitioners Database, payouts in 
my State of Pennsylvania have risen from $187 million in 1991 to nearly 
$500 million in 2003. These excessive lawsuits have gotten so out of 
control, as I mentioned earlier, that many doctors have quit the 
practice of medicine. That means patients do not have physicians to 
even see.
  Last year I met with a dozen doctors from my district. Of the dozen, 
nearly all of them raised their hand when I asked them if they had 
children. One doctor said his wife refuses to allow her kids to study 
medicine. We need to address this issue, and we need to address it 
today.
  Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from 
Massachusetts (Mr. Delahunt).
  Mr. FRANK of Massachusetts. Mr. Speaker, will the gentleman yield?
  Mr. DELAHUNT. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. Mr. Speaker, the gentleman from Texas is 
right. I did vote for this bill last year, because I thought it was 
about medical malpractice and did not read it carefully. In fact, what 
happened was I made the mistake last year that the gentleman from 
Indiana might make this year. I believed that they would honestly talk 
about medical malpractice, and it did not occur to me they would try to 
sneak into this bill something that gave partial immunity to the drug 
manufacturers.
  So I admit that I did not read it thoroughly, but I will not when the 
gentleman is managing bills make that mistake again.

[[Page 18307]]


  Mr. DELAHUNT. Mr. Speaker, I had a revelation during the course of 
the exchange about capping premiums. What I found particularly 
fascinating was that my good friend from Georgia, our own Dr. Phil, is 
an advocate for wage control. In other words, cap those fees as long 
as, I guess, it is lawyers. Maybe not for CEOs, but at least we know 
that he is a proponent of wage controls for lawyers.
  But when it comes to price control, it seems that the majority has a 
problem. So you are in favor of capping wages, but not in favor of 
capping prices, because really that is what it comes down to. I guess 
it is a new tradition within the Republican Party.
  In any event, for all the reasons that others have suggested, I think 
not only does this qualify as a bad bill because it is not going to 
accomplish the goal of lowering premiums, but I think, and I would 
suggest, it is a cruel bill, because this cap on so-called noneconomic 
damages impacts the most vulnerable among us, mothers who stay at home 
and particularly children, because they have no economic damages. They 
do not have such economic damages as the loss of potential earnings. So 
apart from their medical bills, all of their losses are noneconomic, 
like a lifelong physical impairment, or maybe a mental disability, or 
disfigurement. This bill will deny them the possibility of a life that 
at least has a modicum of respect and dignity in compensation for their 
loss, a loss which, by the way, they had no involvement in other than 
being the victim.
  Mr. SMITH of Texas. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentlewoman from Tennessee (Mrs. Blackburn), a member of the Committee 
on Energy and Commerce and a former member of the Committee on the 
Judiciary.
  Mrs. BLACKBURN. Mr. Speaker, they are asking what are we for and what 
is this bill all about? I will tell you what we are for, what this 
majority is for, and what this bill is about. It is about preserving 
access to health care in our local communities, lots of communities, 
like my Seventh District of Tennessee. It is not about sitting here and 
saying, oh, we think all it is going to take to address health care is 
a big, fat Federal Government. It is about access to health care in our 
local communities.
  Americans know that our health care costs are soaring. They also know 
that trial lawyers many times view our hospitals and our health care 
providers as a limitless ATM.
  That is the reason I cosponsored this legislation. My constituents 
have had enough. They have grown ill and fatigued with the stories that 
are out there, with seeing their local doctors run out of town, with 
seeing practices close up, and with knowing that they have access to 
less and less available health care. We know that only one in seven OB-
GYNs now deliver babies for fear of being sued, and the national 
medical liability rate has risen almost 500 percent since 1976.
  This is an issue that affects our families. It affects women. It 
affects children. It affects our rural communities. This bill is a way 
to assist in preserving health care for our local communities.
  Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from 
Illinois (Mr. Emanuel), who has followed this subject ever since he has 
come to Congress.
  Mr. EMANUEL. Mr. Speaker, I speak as both the son of a doctor and the 
son of a nurse. I introduced the Vioxx amendment that would prohibit 
this special liability protection for the pharmaceutical companies. 
Many Americans across the country are watching the Vioxx trial in Texas 
where the Ernst family has lost their loved one, a marathon runner, a 
personal trainer, who died a premature death because he took Merck's 
Vioxx medication, and the FDA was not provided with all the information 
that should have warned of the dangers from that. According to the 
FDA's doctor, approximately 55,000 premature deaths occurred because of 
Vioxx. That is the trial the American people are watching.
  And then they tune in here to this Congress. What is this Congress 
trying to do? They are trying to protect Merck and the other 
pharmaceutical companies in a way that no other industry would get that 
type of protection from any liability. This Congress would intervene in 
that civil trial down in Texas where the Ernst family is trying to get 
their proper redress from the premature death of a marathon runner who 
had a heart attack because the information was withheld.
  The irony of this whole situation is just last year, this Congress, 
bipartisan, said the FDA did not have the proper resources to regulate 
these medications. And now you want to hide behind the FDA's Good 
Housekeeping seal to give protection to an industry in a way that no 
other industry in America gets.
  Last year this Congress gave the pharmaceutical industry $132 billion 
in additional profits through the prescription drug benefit. Now you 
want to give them liability protection in a way that no other industry 
gets. You are like the gift that keeps on giving. There is a gift ban 
that is on in this Congress, and at some point the pharmaceutical 
industry has got to be held accountable just like everybody else.
  The Ernst family lost a loved one. According to the FDA, about 55,000 
other deaths also have occurred. Let us have a debate about medical 
malpractice. Don't muck it up with your political goals of trying to 
protect the pharmaceutical industry and other families from the proper 
redress of the courts.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 20 seconds.
  Mr. Speaker, regarding Vioxx, some have alleged the company knowingly 
misrepresented or withheld information from the FDA. If so, they would 
be denied the protections in the bill because the bill specifically in 
section 7 says and excludes any instances in which a person, before or 
after premarket approval, clearance, or licensure of such medical 
product, knowingly misrepresented to or withheld from the FDA 
information that is required to be submitted.
  If we look at the language of the bill, we can see that what the 
gentleman said is not relevant.
  Mr. Speaker, I yield 2 minutes to the gentleman from Pennsylvania 
(Mr. Dent).
  Mr. DENT. Mr. Speaker, prior to coming to the U.S. Congress, I served 
14 years in my State general assembly. I spent a lot of time on this 
issue, dealing with issues like caps on noneconomic damages, collateral 
sources, periodic payments, joint and several liability modifications 
and venue shopping. I just heard some statements from the other side, 
well-intentioned, but, I must respectfully say, misguided, that simply 
mandating a premium reduction will not solve this problem. What will 
happen is what happened in my State.
  In 1975, a State-administered medical liability program was created 
because no one wanted to write insurance in the Commonwealth of 
Pennsylvania in 1975. We were in a crisis. That did not solve the 
problem. That State-administered program is broke. My general assembly 
has appropriated hundreds of millions of dollars to pay doctors' 
medical liability premiums and hospitals' premiums. That is what will 
happen if you mandate that premium reduction. It sounds good, but it 
does not fix it.
  The Governor of my State, Ed Rendell, a Democrat, I talked to his 
insurance commissioner a couple of years ago. I said, if this is an 
insurance problem, let's look at the numbers. For every dollar paid at 
that time in medical liability premiums, there was $1.27 in losses 
incurred; $1 in, $1.27 out. That is an insurance problem. No one wants 
to write insurance. So if you mandate a premium reduction or hold it 
harmless, the State is going to have to set up a program, and they are 
going to have to find the money, and they are going to turn to the 
taxpayers. That is what is happening. We are in crisis.
  This legislation we are dealing with helps deal with this issue 
because providing for caps on noneconomic damages, Mr. Speaker, will 
help restore some level of predictability and stability to the 
insurance marketplace. You need to have people wanting to

[[Page 18308]]

write insurance in these States. Competition will help you actually 
drive down costs. I know that some might find that unbelievable, but it 
will work. It has to work.
  I rise to speak in favor of H.R. 5, the Health Act of 2005.
  This bill addresses one of the central issues in health care today: 
the way in which unpredictable, out-of-control legal judgments are 
driving up health care costs. This bill sets caps on punitive and non-
economic damages that result from malpractice litigation. This is 
important because, as the Congressional Budget Office has noted, under 
this act, medical liability premiums would be an average of 25 to 30 
percent below what they would be under current law.
  High medical liability premiums are creating serious doctor 
recruitment and retention problems in my State, especially in so-called 
``high risk'' disciplines such as neurosurgery, orthopedics, emergency 
medicine, I and obstetrics. In my district, the crisis created in part 
by outrageous malpractice judgments is best exemplified by the 
experience of St. Luke's Hospital.
  St. Luke's has been recognized nationally 17 times for clinical 
excellence. Despite this accomplishment, St. Luke's became the target 
of a frivolous, outrageous lawsuit in the fall of 2000. As a direct 
result, St. Luke's professional medical liability costs increased more 
than $4 million in just 2 years.
  As a result of medical liability issues, Pennsylvania hospitals face 
challenges retaining neurosurgeons, without whom trauma centers cannot 
operate. In fact, a few years ago, another regional hospital serving my 
district--Easton Hospital--lost all of its neurosurgeons to other 
States. And Lehigh Valley Hospital, an extraordinary three-hospital 
network and the largest employer in my district, experienced a fivefold 
increase in their liability costs over the past few years.
  Nothing about this bill prevents a litigant from seeking his or her 
day in court. In California, which was the model for the current health 
act, plaintiffs with legitimate claims still enjoy large recoveries. 
The Government Accountability Office, GAO, has determined that 
California has controlled medical liability insurance premiums much 
better than has my home State, Pennsylvania. In fact, in Pennsylvania 
the medical liability crisis is so acute that the legislature has 
appropriated hundreds of millions of dollars to assist physicians and 
hospitals with rapidly rising medical liability premiums. That's like 
placing a Band-Aid on a gaping wound. Structural reform is needed; 
taxpayers bailouts--Band Aids, if you will--don't solve the underlying 
problem.
  For all these reasons, I believe that congressional intervention is 
essential in the form of support for the Health Act of 2005.
  Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman 
from Florida (Mr. Wexler).
  Mr. WEXLER. Mr. Speaker, the gentleman from New York (Mr. Weiner) 
smoked out the truth about this bill a couple of minutes ago when he 
simply asked that the bill include a provision that would require a 
flat medical malpractice premium rate. He smoked out the truth, and 
what we now know is that this bill is not about providing access to 
health care. It is not about solving a health care crisis. What it is 
about is protecting the insurance industry.
  In fact, a study by the insurance commissioner of Missouri found that 
while malpractice premiums for doctors doubled from 2000 to 2004, 
malpractice claims during the same period increased less than 6 
percent. Insurers themselves admit that capping medical malpractice 
payments will not reduce premiums. In fact, States that have caps have 
higher premiums than States without caps in every medical field, 
including internists, surgeons and OB-GYNs.
  The proponents of this bill claim that large payouts are driving up 
the cost of medical malpractice insurance. Nothing could be further 
from the truth. In fact, the opposite is occurring in Florida where the 
average amount insurers are paying for claims has gone down 14 percent 
since 1991. At the same time, however, premiums charged by insurers 
have increased 43 percent. In particular, overall claim payouts for 
Florida's largest medical insurer, FPIC, dropped 22 percent in the last 
4 years. Outrageously, remarkably, this same insurer saw a 154 percent 
increase in profits for the first quarter in 2004.
  This legislation needs to be seen for what it is. It is not about 
helping doctors. It is not about helping patients. The only goal of 
this legislation is to ensure even higher profits for insurance 
companies while not doing a blasted thing to help the sick people in 
America, to help the people that provide the medical services to our 
people. This bill will not do one iota to improve health care in this 
country. The gentleman from New York smoked it out just right.
  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman 
from Texas (Mr. Burgess).
  Mr. BURGESS. I thank the gentleman for yielding me this time to speak 
on this important issue today.
  Mr. Speaker, we, of course, passed this bill some 2 years ago last 
March. Down in Texas we passed a bill 2 years ago this September and a 
constitutional amendment that would essentially provide the same type 
of cap on noneconomic damages that we are discussing here today in H.R. 
5.
  It has been said before that the States are great laboratories for 
the Nation. If that is the case, let us examine what has happened in 
Texas in the 2 years since the cap has been passed. When I ran for 
Congress in the year 2002, we started the year 2002 with 17 insurers in 
the State of Texas. By the time I took this office at the start of 
2003, we were down to two insurers. It is pretty hard to get 
competitive rates when you have driven 15 insurers out of the market. 
Since the passage of the Proposition 12 in September of 2003, which 
allowed a cap on noneconomic damages, we have had 12 insurers come back 
to the State, which has provided competitive rates, and Texas Medical 
Liability Trust, my old insurer of record before I left medical 
practice, immediately dropped its rates 12 percent after the passage of 
Proposition 12 and then dropped its rates another 5 percent for a total 
of 17 percent in the first year since Proposition 12 was passed.
  Most importantly, Mr. Speaker, an unintended consequence of the 
passage of Proposition 12 in Texas was what has happened in private, 
not-for-profit hospitals.

                              {time}  1445

  The Cristus Health Care System in south Texas, a self-insured 
hospital system, realized a $12 million savings from the first 9 months 
after that proposition was passed, money that was put back into nurses' 
salaries, capital expansion, the very things we want our hospitals to 
spend money on if they were not having to pay it for noneconomic 
damages.
  And, finally, I just cannot let pass the statement about price 
controls. Physicians have lived under price controls, certainly all of 
my professional career, for the last 25 years. We have managed, 
sometimes poorly. But what happens when we have price controls is we 
end up with lines, and one of the biggest problems we have right now is 
that doctors are dropping out of practice, and we do not have the 
practitioners there to provide care for the patients.
  Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
Nevada (Ms. Berkley).
  Ms. BERKLEY. Mr. Speaker, I thank the gentleman from Michigan (Mr. 
Conyers) for yielding me this very precious time.
  Mr. Speaker, I am a doctor's wife. There is nobody in this body that 
wants medical malpractice reform more than I. My husband's medical 
malpractice has gone up exponentially every single year for absolutely 
no reason, and if I thought for a minute that this legislation would 
cure that problem and provide relief for the doctors of this country, I 
would be all over this legislation.
  Unfortunately, this piece of legislation will not do what the 
Republican side of the aisle says it will. And if the Republican 
leadership really wanted to provide relief for the doctors, we would 
have legislation on the floor that the bipartisan Congress could vote 
on and support and pass and put before the President for signature.
  This is a bill not to help the doctors. This bill contains and limits 
claims against negligent hospitals, drug companies, medical device 
manufacturers, nursing homes, HMOs, and insurance

[[Page 18309]]

companies. This bill is not for doctors. This bill is a gift to the 
insurance companies. There is no provision, there is not one line, one 
sentence in a 26-page bill, that would ensure that the savings that was 
realized by the insurance companies would be passed on to the doctors. 
The doctors will continue to suffer while the insurance companies will 
get happier and richer.
  There is a medical crisis in this country. There is a crisis in 
access to health care. This is not the legislation that is going to 
cure that. And for those people who talk lovingly and glowingly of the 
insurance companies and the marketplace and competition will lower the 
cost for the doctors, let us have another thought about that. Since 
when, since when, can the doctors put their faith in the insurance 
companies when it is the insurance companies that are messing up the 
doctors? I do not like to see the doctors being used by the insurance 
companies to do the insurance companies' dirty work.
  Let us get a reality check here. Let us not pass this dog of a piece 
of legislation. Let us work together and pass legislation that is truly 
going to provide medical malpractice reform and lower premiums for the 
doctors. They need it, and they deserve it.
  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentlewoman 
from North Carolina (Ms. Foxx).
  Ms. FOXX. Mr. Speaker, I thank the gentleman from Texas for yielding 
me this time.
  I rise because this outstanding bill we are voting on today is so 
important to my constituency. Skyrocketing insurance premiums have been 
diminishing our Nation's health care delivery system for far too long. 
Women have been affected severely as OB/GYN doctors have stopped 
delivering babies because financially it does not make sense for them 
to practice in that area. The physicians who bring life into this world 
are too often forced to reject high-risk patients out of fear of future 
litigation. Trial lawyers continue to harass America's doctors. 
Physicians continue to face the burden of skyrocketing insurance 
premiums.
  As a mother and grandmother, I know this is not acceptable. The 
HEALTH Act of 2005 will provide the means to take action and thwart the 
efforts of greedy trial lawyers. In turn, this will help Americans, 
specifically women, obtain better access to the health care they need 
and deserve. More doctors will stay in business, creating more 
treatment options, less expensive care, and better access to health 
services for all Americans.
  Health care dollars should be spent on patients in the hospital, not 
on lawyers in a courtroom. This bill will direct more health care 
dollars to treating and curing patients, which is what our health care 
system should be about.
  I urge my colleagues to join me in supporting this bill, and I urge 
our Senators to drastically improve America's health care system by 
passing this bill as soon as possible.
  Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman 
from California (Ms. Linda T. Sanchez), who serves with distinction on 
the Committee on the Judiciary.
  Ms. LINDA T. SANCHEZ of California. Mr. Speaker, I thank the 
gentleman from Michigan (Mr. Conyers) for yielding me this time.
  Mr. Speaker, I rise in strong opposition to this unconscionable 
medical malpractice liability bill. This bill will do nothing to reduce 
the skyrocketing health care costs in this country. All it will do is 
deprive people who are already sick and injured of justice.
  Mr. Speaker, it is undeniable that most Americans do not have access 
to affordable health care and that many specialists and trauma centers 
are closing their doors. But instead of addressing our health care 
crisis head on, my Republican colleagues have come up with H.R. 5.
  H.R. 5 is as deplorable as it is ineffective. Trying to stabilize 
medical malpractice insurance rates by capping legitimate victims' 
damages is akin to trying to put out a forest fire with a squirt gun. I 
know that H.R. 5 will not magically keep medical malpractice insurance 
rates down and keep doctors in business because the bill is modeled 
after California's Medical Injury Compensation Reform Act, better known 
as MICRA.
  My Republican colleagues love to sing the praises of MICRA. But guess 
what? MICRA did not work. MICRA's caps on pain and suffering damages 
have not reduced insurance rates for doctors in my State. MICRA was 
signed into law in 1975, but medical malpractice insurance rates did 
not stabilize until years after MICRA was passed. In fact, between 1975 
and 1993, California's health care costs rose 343 percent, nearly twice 
the rate of inflation and 9 percent higher than the national average 
each year.
  When California's insurance rates stabilized, it was because the 
State passed legislation to directly deal with the insurance problem. 
They passed an insurance reform bill known as Proposition 103.
  It is a shame that the Republican leadership of the House is further 
victimizing victims instead of getting at the root of the real problem. 
Where is the Republican leadership on the real health care issues that 
Americans care about? Where is a Republican House bill to provide 
health care for every working family? Where is a Republican House bill 
to encourage more students to go into medicine and nursing and for 
practicing doctors to keep their doors open? Where is a Republican 
House bill that deals directly with medical malpractice insurance 
rates?
  My Republican colleagues have not offered bills that will help reform 
our health care system. Legislation like that would have prevented the 
forest fire before it even began. Instead, House Republicans cap 
legitimate victims' damage awards. H.R. 5, without insurance and health 
care reform, is meaningless. H.R. 5 simply reinjures the legitimate 
victims of medical malpractice, and we should vote ``no'' on H.R. 5.
  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentlewoman 
from Washington (Miss McMorris).
  Miss McMORRIS. Mr. Speaker, I thank the gentleman for yielding me 
this time.
  I also rise in support of H.R. 5, which will bring needed medical 
liability reform to health care providers in Washington State.
  As I travel around eastern Washington, I hear from desperate doctors 
and health care providers that these lawsuits are increasing costs to 
patients and driving doctors out of business. It is not unusual to hear 
that doctors are being forced to drop their insurance or stop 
delivering babies, or younger doctors are quitting to practice 
overseas. This is at a time when we have a health care personnel 
shortage. This has happened in areas within my district, such as 
Odessa, Republic, and Davenport, where we have no OB/GYNs, and pregnant 
women must travel over an hour now for care. Additionally, it is 
becoming impossible to recruit and retain specialists, such as 
neurosurgeons and cardiologists, when 30 to 50 percent experience 
lawsuits annually. Emergency care is in no better shape with over 30 
percent of trauma surgeons being sued each year. This is unacceptable 
for 21st century health care.
  Skyrocketing medical liability insurance costs for doctors and health 
care providers has caused the American Medical Association to declare 
that Washington State is in a medical liability crisis. In the past 10 
years, the average jury findings in my State have increased 68 percent. 
As well, the number of million-dollar settlements has risen almost ten 
times.
  This is an important bill that limits excessive lawsuits, but also 
ensures that those who are truly harmed are going to get their day in 
court. Over the past few years, had this law been enacted, Washington 
would have saved an estimated $53 million. HHS estimates that by 
setting reasonable guidelines for these noneconomic damage awards, we 
will save between $70 billion and $126 billion in national health care 
costs annually.
  H.R. 5 will bring common-sense reform to outrageous liability rates 
and will protect patients' access to quality and affordable health 
care.
  Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the gentleman from 
Massachusetts (Mr. Markey).

[[Page 18310]]


  Mr. MARKEY. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  All the public should know on this bill is that no Democrats were 
allowed to make any amendments to this bill. They were not allowed to 
debate this bill. Even the great gentleman from Michigan (Mr. Conyers) 
of the Committee on the Judiciary, no amendments allowed. None. No 
thought required by half of the Congress. And do the Members want to 
know why? Because this bill is really the pluperfect payback of the 
Republican Party to the insurance industry. This bill will victimize 
patients in the courtroom after they have already been victimized in 
the operating room. That is what it is all about.
  The premise of the bill is this, and it is not a bad premise: If they 
are willing to lower the amount of money that somebody can receive for 
the pain and suffering that they have had inflicted upon them by some 
medical operation, then, in turn, there will be a lowering of the 
premiums that doctors have to pay. That is kind of the trade-off that 
the Republicans have. Lower return for the patients for their pain and 
suffering, but we also get, as a result, lower premiums for the 
doctors.
  But 2 years ago when I made the amendment in the Committee on Energy 
and Commerce that would have said that all of the savings from the pain 
and suffering of patients would then go to lowering of premiums for 
doctors, every Republican voted against that because the insurance 
industry does not want the money to go to lower premiums for doctors. 
And then this year when I wanted to make an amendment in the Committee 
on Energy and Commerce that would have said the same thing, lower 
premiums, I was not allowed to make the amendment. Out here on the 
House floor, I was not allowed to make the amendment.
  So it is not about lowering the premiums for physicians with the 
money that is ``saved'' from the money that would have gone to someone 
whose family had been harmed because they might have lost their sight, 
their limbs, their ability to bear children, their ability to fully 
function in society. All of those savings for the insurance industry, 
they are very real. But the lowering of medical malpractice fees is 
only illusory.
  And, secondly, the bill will protect the pharmaceutical industry from 
liability as long as the drugs that harm patients are FDA-approved. The 
FDA approval is designed to protect patients from harmful drugs, but it 
should not waive a company's responsibility for drugs they put on the 
market. With all of the recent reports about how FDA approved drugs 
that harmed people, from Vioxx to Bextra to Accutane to Paxil, now is 
not the time to limit patients' access to the courts, but that is what 
the pharmaceutical industry and the insurance industry is going to get 
on the House floor today.
  Vote ``no'' on this bill.
  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman 
from California (Mr. Lungren), a member of the Committee on the 
Judiciary and former attorney general of California.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the 
gentleman for yielding me this time.
  I would like to just make some comments on some of the suggestions 
that have been made that MICRA does not work in California and refer 
only to those parts of this bill that are patterned after MICRA.
  Prior to the time that I came to Congress for the first tour, I did 
medical malpractice cases in California, primarily on the defense side 
for doctors and hospitals, but I also handled some plaintiffs' cases. 
In fact, I think I had one of the first successful lawsuits against an 
HMO in the entire country.
  MICRA came into California at a time when we had a crisis, when we 
had a medical crisis of doctors leaving the State of California or 
stopping their practice.

                              {time}  1500

  It was particularly acute in some specialties, but it was across the 
board. The evidence is there. The history is there. I can tell you it 
was there; I saw it.
  In 1975, the legislature, in response to that problem, passed MICRA. 
That is what this is patterned after. It had a $250,000 limitation on 
pain and suffering. It had these other recommended changes with respect 
to recovery. It has not stopped successful lawsuits against doctors who 
have, in fact, committed malpractice.
  But what it has done is it has taken a part of the process that 
basically abused the process out. And what it has done is stabilize 
what was otherwise a tremendous spiral in the medical malpractice 
premiums that doctors saw.
  Now, some have suggested that is not the case in California. What I 
can tell my colleagues is it stopped the exit of doctors from the State 
of California. It stopped the exit of specialists from practice in the 
State of California. And while it did not diminish entirely the 
increases, it stopped the trajectory of increases. As a result, it did 
provide a very serious partial solution to the problem that we found in 
California.
  That is the model. To the extent this bill is modeled after MICRA, 
that is the model we are talking about.
  So if people want to talk about pilot projects, we have a 20-plus-
year pilot project in the State of California. Ask the medical 
community whether or not it has been effective. Ask the patients who 
now have availability to the services of doctors who otherwise they 
would not have had we not done something in the State of California.
  So for those who are wondering whether or not this will work, at 
least that part of the bill that is patterned after MICRA will. We have 
now had a 20-plus-year pilot project, and it has proven to be 
successful.
  Mr. CONYERS. Mr. Speaker, I would like my colleague to know that this 
bill is based on the California program MICRA, and premiums for medical 
malpractice insurance grew more quickly between 1991 and 2000 than the 
national averages. Just remember that.
  Mr. Speaker, I yield 45 seconds to the gentlewoman from California 
(Ms. Solis).
  Ms. SOLIS. Mr. Speaker, I rise in opposition to H.R. 5. It is an ill-
conceived, ill-crafted bill that does nothing to help drive costs down. 
Studies have shown that this is not the way to go. In fact, insurance 
companies are the ones that are gaming us right now.
  In California, malpractice rates have actually come down because we 
have enacted tough legislation, as was mentioned earlier. We need to do 
more to provide for, I would say, a level playing field so that the 
insurance companies do not walk away taking advantage of our consumers.
  Mr. CONYERS. Mr. Speaker, I yield the remainder of my time to the 
gentlewoman from South Dakota (Ms. Herseth).
  Ms. HERSETH. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Mr. Speaker, I also rise today in strong opposition to H.R. 5. As 
many of my colleagues have pointed out, there are various troublesome 
aspects of this bill, including the recent study that demonstrated 
clearly the rising cost of insurance premiums, while the claims have 
remained steady in terms of the ultimate litigation outcomes of those 
claims that have been filed. So we should not be passing any 
legislation that is not more comprehensive to hold insurance companies 
accountable as well.
  But H.R. 5 is also troublesome because of its blatant disregard for 
States' rights. In South Dakota's 2004 legislative session, a bill 
modeled on H.R. 5 was defeated in committee on a unanimous bipartisan 
vote. I think this sends a strong signal that H.R. 5 does not provide 
the type of comprehensive solution to medical malpractice insurance 
premiums that States are looking for and will stifle innovation in the 
States that has been important to the health care industry.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 20 seconds.
  Mr. Speaker, I just want to reply very quickly to the point that was 
made, and that is that this bill does not violate any States' rights. 
Section 7(a), it very clearly says that if any State has any cap of any 
amount, be it

[[Page 18311]]

higher or lower than the caps in the bill, then that State's cap will 
prevail.
  So this recognizes States' rights. It is friendly to States' rights.
  Mr. Speaker, I yield 2 minutes to the gentleman from Ohio (Mr. 
Chabot), a member of the Committee on the Judiciary and also chairman 
of the Subcommittee on Constitutional Law.
  Mr. CHABOT. Mr. Speaker, I thank the gentleman for his leadership on 
this bill. I rise in strong support of the bill, and I would urge my 
colleagues to support it.
  The costs of the tort system continue to take their toll on the 
Nation's economy. Medical professional liability insurance rates have 
skyrocketed, causing major insurers to drop coverage or raise premiums 
to unaffordable levels. We have heard case after case where this last 
occurred nationwide. In fact, in my home State of Ohio, it has been 
designated as a ``crisis State'' by the American Medical Association.
  According to some estimates, premiums are now rising in Ohio anywhere 
from 10 percent to 40 percent, with many doctors involved in specialty 
practices such as obstetrics seeing their premiums rise by 100 percent, 
100 percent or, in some cases, even more. Obviously, this has a 
negative impact on both patients and doctors, causing higher costs and 
forcing many doctors to close their practices.
  The HEALTH Act, this act that we are debating here this afternoon, 
addresses this crisis by eliminating frivolous lawsuits and making 
health care more accessible and more affordable. We have been talking 
about doing that for years. This is a bill where we can actually do 
something about making health more affordable.
  The HEALTH Act has enjoyed strong support in the House of 
Representatives in past Congresses, and I strongly urge my colleagues 
on both sides of the aisle to support this commonsense legislation if 
they are serious about bringing the high cost of health care in this 
country down to affordable levels.
  Ms. DeGETTE. Mr. Speaker, I yield myself 5\1/2\ minutes.
  Mr. Speaker, the American health care system is in crisis, in part, 
because of skyrocketing medical malpractice insurance rates. This 
crisis, however, is not the result of frivolous lawsuits, but of 
insurance industry practices.
  The so-called solution that we are debating today, carving out 
enormous new liability exemptions for health insurers, pharmaceutical 
companies, medical device manufacturers, and nursing homes would not 
lower doctors' malpractice insurance rates by one dollar. Too many 
doctors are struggling to keep their practices afloat under the burden 
of enormous insurance premiums but, instead of helping them, what we 
are doing today is penalizing the severely injured patients and the 
families of those who die a result of medical negligence without 
providing any relief to the doctors from high malpractice insurance 
rates.
  A new study, and we have been talking about it today, by the Kaiser 
Family Foundation, found that since 2001, there has been a 25 percent 
decrease in the average number of medical malpractice claims per 
physician.
  Now, if medical malpractice claims have decreased, why do insurance 
premiums continue to increase? We have been talking today about MICRA, 
the California insurance program. Now, it is true, the State capped 
medical malpractice payments in 1975; but despite this, as we just 
heard from the gentleman from Michigan (Mr. Conyers), malpractice 
premiums rose 450 percent over the next 13 years. Only after 1988, when 
California also implemented insurance reform, did the rates go down. 
But, today, instead of insurance reform, we are focusing entirely on 
capping damages.
  Now, even the spokesman for the American Insurance Association, 
Dennis Kelly, said these words. He said, ``We have not promised price 
reductions with tort reform.''
  So I want to ask my colleagues, why are we doing this bill today? 
What is the real reason for this bill? If the malpractice insurance 
companies are not going to reduce insurance premiums for these 
beleaguered doctors, why are we passing this bill? And what is the 
cause of the increasing insurance rates?
  Some suggest that rate hikes are due to insurer investment losses. 
Others point to old-fashioned price gouging. This year, for example, 
the Washington State insurance commissioner ordered insurers to refund 
more than $1 million in premiums to physicians because rate hikes were 
unjustifiable. But I tried to do an amendment, I did it in committee 
last time when we heard it, and I tried to submit it to the Committee 
on Rules: let us do a study. Let us figure out why these rates are high 
and why Dennis Kelly says they are not going to go down.
  The Republican majority refused to even allow a study of malpractice 
insurance rates and why they are so high. That is what this bill is 
really about. Because billion-dollar insurance companies have Federal 
antitrust exemptions, they are allowed to legally fix prices, and this 
has helped the industry gain a record $25 billion in annual profits.
  Now, there is one thing we can agree on across the aisle: Congress 
must stop this price-gouging of physicians. But granting blanket 
liability protection to negligent nursing homes, to pharmaceutical 
companies, and insurance companies, without addressing insurance 
billing practices, does nothing to solve the problem for these doctors. 
And what is worse, the immunity for these other industries will be 
broader than any State tort reform law. It will do nothing to help the 
doctors; and in the end, it will serve to severely limit the rights of 
many millions of Americans.
  It undermines our health care system to penalize victims of medical 
negligence in the name of relieving doctors' burdensome malpractice 
premiums when, actually, nothing is being done to reduce those 
premiums. Unfortunately, I think this is as a result of an aversion of 
some in Washington to what I would call fact-based policymaking.
  Now, there is a solution. We could work across the aisle to reduce 
medical malpractice insurance rates, and we could do this by passing 
bipartisan insurance reform. This would get to the root of the crisis 
by reducing artificially inflated insurance rates for doctors and not 
punishing injured patients.
  One further note. I hear all day that States are having a terrible 
problem: doctors cannot get insurance, OB/GYNs are leaving. If this is 
a State problem, I say to my colleagues, if States are having these 
issues, I want to know why we are trying to address it at a Federal 
level. This is not traditionally a Federal issue. The States can do it.
  One further note. Anyone reading this bill would know, for the 
gentlewoman from South Dakota's (Ms. Herseth) State and every other 
State, this bill would supersede any other rate or caps they might have 
with the Federal law. That is wrong. I think we should abide by States' 
rights and defeat this bill.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 1\1/2\ minutes.
  Mr. Speaker, what was just said was actually contradicted by the 
Government Accountability Office. The GAO found that rising litigation 
awards are responsible for skyrocketing medical professional liability 
premiums. The report stated that ``GAO found that losses on medical 
malpractice claims, which make up the largest part of the insurers' 
costs, appear to be the primary driver of rate increases.''
  The GAO found that insurers are not to blame for skyrocketing medical 
professional liability premiums. The GAO report states that insurer 
``profits are not increasing, indicating that insurers are not charging 
and profiting from excessively high premium rates.''
  Mr. Speaker, I also want to say that the opponents of this 
legislation are forgetting, I hope not ignoring, a study by the Harvard 
Medical Practice. What this study found is that over half, over half of 
the filed medical professional liability claims they studied were 
brought by plaintiffs who suffered either no injuries at all or, if 
they did, such injuries were not caused by their health care providers, 
but rather by the underlying disease itself.

[[Page 18312]]

  Mr. Speaker, I yield 4 minutes to the gentleman from Georgia (Mr. 
Gingrey).
  Mr. GINGREY. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Mr. Speaker, I would like to take my time, I hope sufficient time, to 
refute some of these statements that have been made in opposition. I 
want to start with the gentlewoman from Colorado who just spoke. It is 
absolutely wrong about the issue of Federal law superseding State law 
in cases where the State has already addressed the issue.

                              {time}  1515

  Let us say the issue of caps, my State of Georgia passed a law this 
year, and the caps there are $350,000. That would be applicable State 
law would apply. It is only when States have not addressed the issue 
when the Federal law would speak.
  I want to also address something the gentlewoman said in regard to 
this bill being nothing. I have heard this not just from her, but from 
number of other speakers on the other side in opposition, talking about 
that this is nothing but a protection for the insurance industry, and 
it is another bail-out of protection for the pharmaceutical industry, 
and they are relieved of all liability, which is absolutely untrue, Mr. 
Speaker.
  In fact, last night when we were talking about the rule, the 
gentleman from Arkansas, a registered pharmacist, opposed the rule and 
the bill basically for the same reason. I would like to remind him. I 
hope the gentleman is listening to the discussion this afternoon. But 
this would protect a pharmacist who prescribes a drug, a legally FDA-
approved drug, that the pharmacist had no idea that there might be a 
problem or an adverse reaction. This is what this bill does. That would 
protect the pharmacist from punitive damages in a case like that, where 
there was no deliberate intent to harm the patient.
  So it is very important that all of our colleagues understand the 
truth here. The gentleman from Illinois kept talking about the Vioxx 
case, and the marathon runner. Well, if Vioxx and the company that 
makes that drug is guilty of withholding pertinent information that 
they had in clinical trials, and they knew that it was a harmful drug 
that they put out there on the market and exposed patients to that 
drug, then they are going to pay one heck of a price for that, yes, in 
punitive damages.
  So they are not relieved from that under this bill. It is only when 
they did everything right and they were approved by the FDA that they 
would have any relief from punitive damages.
  There are plenty of great athletes, Mr. Speaker. I remember an All-
American basketball player from St. Joseph's University 10 or 15 years 
ago that dropped dead on the basketball court. He was not taking Vioxx. 
But we will see how that case turns out.
  The issue was brought up, Mr. Speaker, about young children who are 
injured, and they do not have a job or profession, so they need this 
pain and suffering compensation that can be infinity, hundreds of 
millions of dollars, rather than a cap at 250-, when the truth is the 
triers of fact, Mr. Speaker, the jury, can determine the life span, the 
expected life span of that child and what their earnings would be over 
the course of that lifetime. The same thing in regard to a stay-at-home 
mom who was a professional maybe, an attorney possibly, before she 
decided to become a mother and a homemaker. Those earnings would be 
calculated as well.
  Finally, Mr. Speaker, a little while earlier a speaker in opposition, 
the gentleman from New York, he made this statement: It comes down to 
the issue of who we are fighting for. I am really not sure who the 
gentleman in the opposition is fighting for. I suspect that I know who 
they are fighting for. Does ATLA sound familiar to you, my colleagues?
  But I am going to tell you who we are fighting for. We are fighting 
for the patient. We are fighting for their right to have the ability to 
access needed specialists in health care, and they are not going to be 
there if we do not level this playing field.
  Ms. DeGETTE. Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman 
from California (Mrs. Capps).
  Mrs. CAPPS. Mr. Speaker, I thank the gentlewoman for yielding time to 
me.
  Mr. Speaker, no one disputes that rising medical malpractice premiums 
are a major, major problem. Unfortunately this bill before us will do 
nothing to solve that problem. It would limit consumers' ability to 
hold negligent doctors, profit-driven HMOs, insurance companies, and 
prescription drug companies accountable.
  The claim is made that excessive or frivolous lawsuits are the cause 
of rising premiums. The problem is that lawsuits affected by the bill 
are by definition not frivolous.
  Where large damages are awarded, it is a jury that has found that the 
patient has been severely harmed, and, in fact, over the last 5 years, 
malpractice insurance payments to patients have actually gone down, and 
that while premiums continue to go up. Now, something is wrong with 
that ratio.
  There is no evidence that capping the damages to an injured person 
because of malpractice is the way to solve this problem. It will not 
lower premiums. It will not even stabilize them. All this bill will do 
is to make very sure that as the malpractice insurers collect 
outrageous premiums, they will be able to continue to pay out even less 
to the patients who have actually been harmed. This will penalize 
innocent victims of medical negligence.
  Furthermore, the bill goes far beyond lawsuits against doctors. It 
would also protect drug companies and HMOs from lawsuits filed by 
people injured because of their policies.
  In 3 years of considering this issue, the majority has not presented 
a shred of evidence that drug companies need these protections. They 
are making billions of dollars in profits. If this bill becomes law, 
the ability of injured patients to hold negligent drug companies 
accountable would be dramatically limited. We have all seen the recent 
stories about Cox-2 inhibitors, other medications. So many have tragic 
outcomes. They highlight the fact that drugs may harm patients. Those 
studies expose how dangerous this bill can be. We should be helping 
doctors with malpractice insurance premiums. But this bill is not going 
to help doctors, and it will hurt patients.
  Mr. Speaker, I urge my colleagues to vote against this bill. Let us 
look for real solutions to rising medical malpractice premiums.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 3 minutes.
  Mr. Speaker, I thought my colleagues might be interested in some 
quotes. One quote is from a former Democratic Senator, and the other 
quote is from a liberal Washington Post columnist. I would like to read 
those now.
  Former Democratic Senator George McGovern has written that ``legal 
fear drives doctors to prescribe medicines and order tests, even 
invasive procedures that they feel are necessary. Reputable studies 
estimate that this defensive medicine squanders $50 billion a year, 
enough to provide medical care to millions of uninsured Americans.''
  Mr. Speaker, this is from a prominent liberal commentator, Michael 
Kinsley. He wrote in the Washington Post, ``Limits on malpractice 
lawsuits are a good idea that Democrats are wrong and possibly foolish 
to oppose. Republicans are right about malpractice reform.''
  Mr. Speaker, also we have a number of polls showing that the American 
people support the HEALTH Act. Between two-thirds and three-quarters of 
the American people support exactly what we are trying to do. Just this 
week a poll conducted by Harris Interactive showed that 74 percent of 
those surveyed support reasonable limits on the award of noneconomic 
damages and limiting payments to personal injury attorneys.
  A poll by the Harvard School of Public Health found the following: 
``More than 6 in 10, 63 percent, say they would favor legislation that 
would limit the amount of money that can be awarded as damages for pain 
and suffering to someone suing a doctor for malpractice.''

[[Page 18313]]

  The same poll found that 69 percent of the people surveyed say a law 
limiting pain and suffering awards would help either a lot or some in 
reducing the overall cost of health care.
  Finally, the results of a recent Gallup poll show that the American 
public strongly supports the HEALTH Act. The survey asked whether those 
surveyed would favor or oppose a limit on the amount patients can be 
awarded for their emotional pain and suffering. Mr. Speaker, 72 percent 
were in favor. That means three-quarters of the American people favor 
this HEALTH Act.
  Mr. Speaker, I reserve the balance of my time.
  Ms. DeGETTE. Mr. Speaker, I yield 3 minutes to the gentleman from 
Michigan (Mr. Stupak).
  Mr. STUPAK. Mr. Speaker, I rise today in strong opposition of H.R. 5. 
Despite its name, this bill is a poor attempt to make health care more 
efficient, accessible, affordable or timely.
  It is not even a serious attempt to lower malpractice insurance 
costs. I agree that Congress needs to comprehensively address medical 
malpractice issues. I understand and sympathize with doctors facing 
rising premiums. But this bill is not the answer.
  Malpractice premiums are rising as costs in all segments of health 
care are rising. And doctors, according to this USA Today article, 
still pay less for malpractice insurance than they do for their rent. 
And as the headline says here, ``Hype outpaces facts in medical 
malpractice debates.''
  I am opposed to this legislation for many reasons. First, it has 
never been brought to the floor with any consideration by the Energy 
and Commerce Committee or the Judiciary Committee. No hearings were 
ever held. And there were no opportunities to amend this bill, to 
include provisions that might actually help solve the problem of 
premium increases.
  The majority believes that the answer to lower medical malpractice 
premiums is to institute an arbitrary $250,000 cap on noneconomic 
damages in malpractice suits. However, large jury awards are not the 
cause of the problem. Only 1.3 percent of all claims result in a 
winning verdict. But the noneconomic caps hurt the children and the 
low-income wage-earners the most.
  Do we really want to create a capped system where the makers of 
Vioxx, Accutane, Celebrex and any other drug are suddenly off the hook 
because of a weak FDA, and the only thing to keep them remotely honest 
is the trial system?
  In addition, this legislation undermines the foundation of our court 
system, trial by jury of our peers. If we trust juries to determine 
whether a person is guilty or innocent and should die in a death 
penalty case, surely we can trust juries to determine compensation for 
victims in medical malpractice. The fact is that juries are cautious, 
and patients only prevail in one of every five cases that ever go to 
trial.
  Let me tell you what the bill fails to do. It fails to address the 
real driver of medical malpractice insurance costs, the insurance 
industry itself.
  The insurance industry investments tanked in the beginning of this 
decade because of a weak stock market, and now the industry is 
squeezing health care providers in an effort to protect their bottom 
line. Why are we not looking at the insurance industry, including the 
fact health insurers continue to be exempt from antitrust legislation?
  In addition, the bill does not address the rising health insurance 
costs. The Congressional Budget Office, our own CBO, found that even 
large reductions in medical malpractice costs will have little effect 
on health care costs.
  Finally, the bill does nothing to address the two root causes of 
medical lawsuits, medical errors and bad actors in the health care 
system. It is a tragedy that medical errors account for almost 100,000 
patient deaths each year, but Congress has done very little to address 
this issue.
  The bill also does nothing to address the fact that 5 percent of all 
doctors are responsible for 54 percent of the malpractice claims paid. 
Why do we allow health care providers to practice if they have a long 
record of errors?
  Mr. Speaker, I urge my colleagues to reject this legislation.
  Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman 
from Pennsylvania (Mr. Dent).
  Mr. DENT. Mr. Speaker, as I mentioned a little earlier today, we 
talked about the insurance industry and its role in this issue. But let 
us be very clear. We need the structural reforms contained in the 
HEALTH Act, H.R. 5, in order to continue to provide access to quality 
care for our constituents and patients of the United States.
  We also need to incent insurance companies to write policies in our 
States, which they will not do indefinitely in this current 
environment. And I remember a few years ago when people said, when the 
crisis was acute in Pennsylvania, they said the problem is the 
insurance companies invested money foolishly in the stock market. Well, 
a lot of people lost money in the stock market a few years ago. At that 
time the insurance companies in my State had about 8 to 10 percent of 
their money in equities. Most of it was in investment-grade bonds, 
which did rather well. But that really was not the cause of the 
problem.
  But let me tell you about the city of Philadelphia. In my State, many 
people want to get their cases heard in a Philadelphia courtroom. Why? 
Because the juries pay more. According to Jury Verdict Research, at 
that time the average jury verdict award in Philadelphia was over a 
million dollars, and the average everywhere else in the State was under 
a half million. No wonder people wanted to go to Philadelphia.
  In fact, President Bush even cited Philadelphia in a speech he made 
in Scranton, Pennsylvania, where trauma centers were closing down. What 
the President said there is that in the city of Philadelphia, there 
were more jury awards, more dollars sent out by Philadelphia juries 
than in the entire State of California, a State of 35 million people, 
and Philadelphia a city of 1.5 million people.
  How is that? The system is broken. I am in the Lehigh Valley of 
Pennsylvania, 60 miles north of Philadelphia. One hospital, St. Luke's, 
was hit with a $100 million jury verdict in a Philadelphia courtroom. 
In a Philadelphia courtroom. It was an outrageous decision. It was 
settled for something less than that, I will tell you that right now. 
But it was an outrageous situation, could have bankrupted a major 
institution that has been nationally recognized on many occasions for 
clinical excellence. That is one of my problems.
  We have also heard, too, that this is not a Federal problem. Does the 
word Medicare mean anything to anyone around here? Medicare will save 
billions of dollars over 10 years if we enact the reforms contained in 
this legislation.
  Furthermore, in many States again like mine in Pennsylvania, to amend 
the constitution to permit caps on noneconomic damages literally is a 
4- to 5-year process.

                              {time}  1530

  But we cannot wait 4 to 5 years to solve this problem. That is why we 
need the HEALTH Act now. We can do it much more quickly. It is 
absolutely critical. A Band-Aid will not stop the bleeding. Structural 
reforms are required.
  As I mentioned a little earlier today, in my State, taxpayers, 
particularly cigarette smokers, that is who is paying the bill for 
doctors' premiums and hospitals' medical liability premiums, that is 
who is paying the bill because no one wants to write insurance, and the 
State-administered fund is broke. They will have to find hundreds of 
millions of dollars more come January 1 to fix this problem.
  The point is, structural reform is needed. Taxpayer bail-outs and 
Band-Aids will not fix the problem. I commend the gentleman from 
Georgia (Mr. Gingrey) for his leadership on this issue. A former 
colleague, Jim Greenwood, I thank for his leadership in the last 
session; and I thank the gentleman from California (Mr. Cox) as well. I 
want to thank them for their leadership. I urge passage of H.R. 5.

[[Page 18314]]

  The SPEAKER pro tempore (Mr. Shaw). The gentleman from Texas (Mr. 
Smith) has 11\1/2\ minutes remaining. The gentlewoman from Colorado 
(Ms. DeGette) has 9 minutes remaining.
  Ms. DeGETTE. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
Ohio (Mrs. Jones).
  Mrs. JONES of Ohio. Mr. Speaker, I thank the gentlewoman for yielding 
time. I rise today not only as a lawmaker but also as a former judge 
who tried many malpractice cases in Cuyahoga County, Ohio, to voice my 
disapproval of H.R. 5, the medical malpractice legislation that 
irresponsibly limits what might be rightfully owed to an injured 
plaintiff.
  My previous experiences have taught me to respect the independence of 
our court and the jury system. Our judicial system must remain 
uninhibited in order to be effective. In direct contradiction to this 
fundamental democratic principle, H.R. 5 limits the capacity of a jury 
to deliver a fair verdict by capping the amount of noneconomic damages 
at $250,000. I say that the facts of each case should be able to 
control.
  Thomas Jefferson once stated: ``I consider trial by jury as the only 
anchor ever yet imagined by man, by which a government can be held to 
the principles of its Constitution.'' By handcuffing the jury, this 
Congress would be trampling on this democratic principle.
  Let me say that we can sit here on the floor of this House and talk 
about a number, $250,000. But it does not reach to a courtroom where we 
have an injured plaintiff who has the ability to put evidence on in the 
courtroom to say to the jury and to the judge that these are the facts 
of our case that deserve to have the law applied to it and have the 
jury render a verdict.
  It would be unfair in my mind as we look at the drug company 
advertisements. It used to be that the doctor would recommend the drug 
to the patient. Anymore, you turn on the TV and the TV is telling the 
patients, Get that purple pill; it will make a difference in your life.
  Why should we allow drug companies who spend millions of dollars to 
entice parties into getting a particular drug without knowing any 
information to be let loose or let go for these reasons.
  I say vote against H.R. 5, the medical malpractice legislation, 
because it is not what we need to help our plaintiffs.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 2 minutes.
  Mr. Speaker, let me share with my colleagues the result of three 
studies, and let me emphasize that these studies are not about 
hypothetical situations. They are not theoretical studies. They are 
studies of the actual experiences of States that have enacted reforms 
similar to the ones we have in this bill that we are talking about 
today.
  According to the U.S. Department of Health and Human Services, States 
with reasonable legal reforms including caps on noneconomic damages 
enjoy access to more physicians per capita: ``We found that States with 
caps on noneconomic damages experienced about 12 percent more 
physicians per capita than the States without such a cap. Moreover, we 
found that States with relatively high caps were less likely to 
experience an increase in physician supply than States with lower 
caps.''
  Mr. Speaker, also, research shows that California reforms, which the 
HEALTH Act is based on, have not resulted in unfair awards to deserving 
victims. A recent comprehensive study of California's MICRA reforms by 
the Rand Institute concluded that under MICRA, ``awards generally 
remained quite large despite the imposition of the cap, and 
California's reforms have not resulted in any disparate impact on women 
or the elderly.''
  Mr. Speaker, in another study, researchers at the Harvard School of 
Public Health stated that ``we found no evidence that women or the 
elderly were disparately impacted by the cap by noneconomic damages in 
California under MICRA.''
  Mr. Speaker, I reserve the balance of my time.
  Ms. DeGETTE. Mr. Speaker, how much time remains?
  The SPEAKER pro tempore. The gentleman from Texas (Mr. Smith) has 10 
minutes remaining. The gentlewoman from Colorado (Ms. DeGette) has 7 
minutes remaining.
  Mr. SMITH of Texas. Mr. Speaker, I yield 4 minutes to the gentleman 
from Georgia (Mr. Gingrey).
  Mr. GINGREY. Mr. Speaker, I thank the gentleman for yielding me time.
  Mr. Speaker, I think it is important that we make sure that all our 
colleagues are clear on some of the issues that have been discussed 
here today. I know there has been some hyperbole maybe on both sides of 
the issue, and I want to be very clear.
  This bill protects our patients, first and foremost, and gives them 
an opportunity to have access to affordable health care and to the 
specialist that they need and when they need them. It also helps our 
physicians, our doctors be able to stay in practice when they have an 
opportunity to have a stable medical malpractice insurance premium that 
they have to pay.
  Yes, there is no question, Mr. Speaker, that section 7 in regard to 
punitive damages, that is applicable to our doctors as well as to 
companies that make medical equipment. It also is applicable to drug 
companies that provide us with life-saving drugs if they have done so 
in a fashion that is not negligent and not deliberately intended to 
harm a patient.
  Here is an example, Mr. Speaker: things like time released infusion, 
chemotherapy, treating cancer patients, insulin pumps for diabetics, 
titanium hip replacements, artificial heart valves. If the makers of 
these life-saving devices were subject to punitive damages every time 
something through no fault of their own went wrong, we would be in the 
situation that we were in a year and a half ago in regard to the flu 
vaccine. Nobody wants to get involved in that business for the fear of 
a lawsuit. And with the government setting prices on flu vaccines, the 
profit margin to begin with was very limited.
  So this section 7 is a very important provision in this bill, Mr. 
Speaker. So again, I want my colleagues on both sides of the aisle to 
understand that this is not a bad provision. This is a good provision.
  Mr. Speaker, also one of the speakers in opposition, well, actually 
several of the speakers in opposition, said that this bill has been 
brought to us, we have had no hearings, we have had no opportunity, we 
have had no voice. It is not true, Mr. Speaker.
  This is the fourth time in 3 years that this exact same bill, H.R. 5, 
has been dealt with on the floor of this House. It is the exact same 
bill.
  I joined this body in 2003. We dealt with it in 2003. We dealt with 
it in 2004, and here we are with the exact same bill. Section 7 was in 
the bill, the section in regard to punitive damages. Nothing has 
changed. In fact, in the Committee on Energy and Commerce this 
February, a hearing was held on medical liability and some 15 witnesses 
were at that hearing, Mr. Speaker. So it is untrue to suggest that we 
have not had hearings and they have not had an opportunity. They know 
this bill.
  It is a good bill. We have passed it three times. We are going to, in 
a few minutes, pass it for a fourth time; and, hopefully, the other 
body will do the same thing so we can get this to the President for his 
signature and level this playing field once and for all.
  Ms. DeGETTE. Mr. Speaker, I yield 2 minutes to the gentleman from 
Washington (Mr. Inslee).
  Mr. INSLEE. Mr. Speaker, there are better ways to solve this problem 
than to strip Americans of the right to trial by jury. Fundamentally, 
this bill takes the right of trial by jury of your peers away from 
Americans and gives that authority to politicians who have never heard 
any of the evidence.
  Take this case about a 4-year-old girl I know from Yakima, 
Washington, named Nichole. Several years ago, she went in with a 
urinary tract problem. The doctors put in a foley catheter. When you do 
that, there is a balloon they put in your bladder that is inflated to 
hold the catheter. This was traumatic to this 4-year-old girl. When 
they went to deflate the catheter, it would not deflate. So they tried 
to deflate it by sticking a steel wire up

[[Page 18315]]

through her urethra to try to puncture the balloon so they could pull 
the catheter out. They tried it many times. This was traumatic to this 
young girl. It did not work.
  So they finally had to inject a solvent up her urethra to dissolve 
the rubber and it dissolved the rubber and it also dissolved part of 
her bladder and severely burned her bladder because of the malfunction 
of a negligently designed and manufactured foley catheter.
  Now, who is better to make a decision for that 4-year-old girl about 
what is justice? Teachers, truck drivers, insurance salesmen sitting in 
a jury who have heard the evidence and who have looked at Nichole and 
understand the future dysfunction she may have and the trauma she had, 
or 435 politicians who are clueless about that specific case?
  Where is the wisdom from the Creator that these politicians are 
vested in to tell us what Nichole went through? Nobody knows except 
maybe someone who was at that trial.
  This is moving authority from jurors, citizens, the people who are 
sitting up in the gallery right here and taking it away from you and 
putting it in the pockets, first of Members of Congress, through the 
lobbyists for the drug companies and the medical companies. And by the 
way you, know what happened because of Nichole's case? That company 
cleaned up its act, and it started a new quality-control mechanism so 
that we will not have future Nicholes, because we had a medical 
negligence system that protected the Nicholes of this world.
  There is a problem. This is not the best way to solve it. Respect 
America, democracy, and our jurors.


                announcement by the speaker pro tempore

  The SPEAKER pro tempore. Members are to refrain from referring to 
persons in the gallery.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 3 minutes.
  Mr. Speaker, I just want to remind my colleague who just spoke that 
our separation of powers provides that all aspects of the government 
are limited to some extent. If juries or judges give outrageous awards, 
like any other exercise of government power, they should be subject to 
reasonable checks and balances.
  Mr. Speaker, I also want to remind my colleagues that unnecessary and 
frivolous litigation is threatening the viability of the life-saving 
drug industry. To encourage the development of life-saving drugs, the 
HEALTH Act contains a safe harbor from punitive damages from a 
defendant whose drugs or medical product comply with rigorous rules or 
regulations. The provision is manifestly fair.
  Why should a drug manufacturer be found guilty of malicious conduct 
when all they did was sell a product approved as safe under the 
comprehensive regulations of the FDA? Claims for unlimited economic 
damages and reasonable noneconomic damages could still go forward under 
the HEALTH Act. The safe harbor does not apply if relevant information 
was misrepresented or withheld from the FDA.
  Eight States have, in fact, provided an FDA regulatory compliance 
defense against damages just like this bill. Those States are Arizona, 
Colorado, Illinois, New Jersey, North Dakota, Ohio, Oregon, and Utah. 
Opposing this bill jeopardizes those State laws. And the Members who 
are from those States might want to remember that.
  Mr. Speaker, the evidence is overwhelming. Without legal reform, 
patients will continue to go without needed doctors: women will 
continue to deliver babies on the side of the road because the nearest 
OB/GYN is hundreds of miles away; parents will continue to be forced to 
watch as their child with brain injury suffers because lawsuits forced 
the nearest neurosurgeon to stop practicing.
  Mr. Speaker, we need to pass this legislation.
  Mr. Speaker, I reserve the balance of my time.
  The SPEAKER pro tempore. The gentleman from Texas (Mr. Smith) has 
3\1/2\ minutes remaining and has the right to close. The gentlewoman 
from Colorado (Ms. DeGette) has 5 minutes remaining.

                              {time}  1545

  Ms. DeGETTE. Mr. Speaker, I yield for the purpose of making a 
unanimous consent request to the gentleman from Rhode Island (Mr. 
Kennedy).
  Mr. KENNEDY of Rhode Island. Mr. Speaker, I rise to ask why we are 
not doing more to ensure fewer mistakes are made in the first place.
  Mr. Speaker, nobody disputes that malpractice premiums are heavily 
impacting many physicians. I think very few of us would dispute that 
there are frivolous claims filed. All of the justifications for this 
bill about losing physicians in high-risk practices are real concerns.
  So why is it that we are spending this time debating a bill that 
won't address this problem? Repeatedly dramatizing the problem doesn't 
make this bill a solution. This bill does nothing to prevent frivolous 
lawsuits. It doesn't rein in the bad actors, in penalizes those who are 
the most grievously injured.
  Experience shows that the link between awards or settlements and 
premiums is tenuous at best. An exhaustive study published this month 
showed that premiums have gone up 120 percent over the last 5 years 
while claims were flat. The GAO has found no evidence that caps on 
damages hold premiums down.
  But even if this bill could work--it would not, Mr. Speaker, but even 
if it could--we are completely missing the real issue.
  We are fighting about how or how not to compensate the victims of 
mistakes and hold negligent providers accountable. Shouldn't we be 
talking instead about how to ensure fewer mistakes in the first place?
  We are talking about closing the barn door but the horse is already 
galloping across the field.
  Mr. Speaker, Sorrel King can teach us all a lesson. Several years 
ago, her 18-month-old daughter Josie suffered severe burns and was 
rushed to the ICU at Johns Hopkins Hospital.
  She got the world-class care you would expect and they saved her 
life. She was going home in just a few days. And then communications 
were botched, orders were lost, and Josie was administered a drug she 
was not supposed to get, over Sorrel's objection. And even then, 
further warning signs were missed.
  Josie King wound up dying of dehydration in one of our Nation's 
finest hospitals. Johns Hopkins settled with Sorrel and her family. 
And--here is where we can learn something--Sorrel turned around and 
gave the money back to Hopkins to create a new patient safety program.
  Mr. Speaker, like Sorrel, we need to spend less effort apportioning 
blame and more effort making our system safer and better. Hundreds of 
thousands of our constituents die in hospitals every year not in spite 
of the care they get, but because of it. These are mostly systems 
problems, not the result of individual negligence.
  Last year I introduced the Josie King Act to begin transforming 
health care delivery so that the system itself is driving better 
quality at lower costs. It laid out a roadmap to bringing health care 
into the information age and promoted the development of uniform 
quality metrics so that providers, the public, and purchasers have a 
clearer picture of which providers get the best outcomes for patients.
  Now we are finally beginning to see attention to these priorities, 
which, unlike the current debate, have bipartisan support. We won't 
reach agreement about capping damages to patients who are hurt, but we 
can agree that the system should hurt fewer people.
  We can pass strong health IT legislation this year, like the bill Mr. 
Murphy from Pennsylvania and I introduced or the one that was reported 
out of committee in the other body.
  We can pass legislation this year to begin linking reimbursements to 
outcomes and quality. I know we have strong leadership on both sides of 
the aisle, in several committees and in the House leadership, for both 
of those things.
  Until we begin aligning incentives in health care so that providers 
who go the extra mile to make their patients better or, even better, 
keep them healthy--people are going to keep getting hurt.
  Until we begin aligning incentives in health care so that the tools 
of the information age can help make care more accurate and more 
efficient.
  Mr. Speaker, I agree with my friends on other side that physicians 
need lower malpractice rates. I also believe that the best way to get 
fewer lawsuits is to get fewer mistakes. Let's keep our eyes on the 
ball and make our health care system better, safer, and more efficient 
and make everyone better off.
  Ms. DeGETTE. Mr. Speaker, I am honored to yield 1 minute to the 
gentlewoman from California (Ms. Pelosi), the distinguished minority 
leader.

[[Page 18316]]


  Ms. PELOSI. Mr. Speaker, I thank the gentlewoman from Colorado (Ms. 
DeGette) for yielding me this time and for her leadership on issues 
that relate to the health and well-being of the American people.
  I also want to salute the two distinguished ranking members, first 
the gentleman from Michigan (Mr. Conyers) of the Committee on the 
Judiciary for his leadership on this important legislation; and I 
especially want to acknowledge the gentleman from Michigan (Mr. 
Dingell), who this year celebrates his 50th anniversary in Congress, 
and every day of those 50 years he has worked to improve access to 
quality health care for all Americans. But particularly on this 40th 
anniversary of Medicare and Medicaid, it is worth noting the 
contributions of the gentleman from Michigan in providing health care 
security for millions of Americans and for upholding the fundamental 
principle that Democrats believe in: Health care is a right, not a 
privilege.
  Mr. Speaker, I rise in strong opposition to the Republican medical 
malpractice bill. Let me begin with this simple fact: Under President 
Bush, 5.2 million more Americans have joined the ranks of the 
uninsured. Today, 45 million Americans have no health insurance. The 
bill before us does not, nor does any other Republican bill during this 
so-called Health Week, provide health insurance to one single American.
  This bill is not about solving the urgent health insurance crisis 
that affects millions of American families, nor is it about improving 
our health care system, containing costs, or even lowering medical 
malpractice insurance premiums. Instead, the Republican medical 
malpractice bill, first and foremost, is a windfall to the big drug 
companies at the expense of Americans who have been injured or killed 
by harmful and unsafe drugs. Once again, protecting the big drug 
companies is at the top of the Republican agenda.
  The Republicans have attempted to hide the true purpose and the real 
reason for this bill. It contains a special liability waiver for drug 
companies for the types of injuries caused by drugs. Under this 
Republican bill, when Americans are injured, or even killed, by drugs 
that have been negligently marketed, they will not be able to obtain 
justice and hold drug companies wholly accountable.
  The Republican leadership, beholden to the pharmaceutical companies, 
refused to allow amendments that would strike this unjust provision. As 
with the Medicare prescription drug bill, where Republicans prohibited 
the government from negotiating for low prices for seniors, and forbade 
Americans from purchasing lower-priced drugs from Canada, this is yet 
another example of the Republicans being the handmaidens of the 
pharmaceutical industry.
  The Republican medical malpractice bill is an extreme bill that is an 
injustice to consumers, and it unconscionably rewards irresponsible 
drug companies. If we are to remain a Nation that seeks justice for 
all, the special liability waiver for drug companies must be removed. 
Unfortunately, the Republicans refused to permit the consideration of 
the Emanuel-Berry amendment to remove this unjust and reprehensible 
provision.
  Apart from pandering to drug companies, this bill utterly fails to 
achieve its stated purpose. It will not lower medical malpractice 
insurance premiums, nor does it address the real cause. The real cause 
of high malpractice premiums is not the payouts for malpractice claims. 
Former Missouri State Insurance Commissioner Jay Angoff issued a recent 
study showing the amount collected in premiums by major medical 
malpractice insurers has doubled. The amount received in premiums has 
doubled, while the claims paid out have remained flat, resulting in 
excessive profits and excessive reserve surpluses.
  The Angoff study found that insurance companies are charging far more 
for malpractice insurance than actual payments or estimated future 
payments warrant. This finding is also supported by numerous studies 
that document that in States that have enacted caps or damage awards, 
they have not seen their premiums for malpractice insurance lowered.
  Rather than addressing insurance companies' refusal to lower rates, 
the Republican bill instead interferes with the rights of injured 
Americans to be compensated for their injuries and have their claims 
heard by a jury of their peers. If enacted, the cap on damages would 
severely harm women, children, and the elderly who have been injured. 
Unfortunately, the Republican leadership did not allow the Democratic 
substitutes by the gentleman from Michigan (Mr. Conyers) and the 
gentleman from Michigan (Mr. Dingell) to be offered.
  The Democratic substitute supports sensible approaches that permit 
only valid claims to go forward. More significantly, the Democratic 
substitute addresses real causes for premium increases and offers real 
solutions for the doctors. It repeals the antitrust exemption for 
insurance companies. It provides targeted assistance to help physicians 
stay in crisis areas.
  We all respect the magnificent contribution that doctors provide to 
our society. It is not only a profession, it is a vocation, and we 
literally could not live without them. So it is with great respect for 
them that I say they deserve better than this bill, which purports to 
help them.
  President Harry Truman said it so well: ``The Democratic party stands 
for the people. The Republican party stands, and always has stood, for 
special interests.'' That was true almost 60 years ago when he said it, 
and it is certainly true today. Let us uphold the public interest. Let 
us stand up to the big drug and insurance companies, and let us oppose 
this unjust bill.
  Mr. SMITH of Texas. Mr. Speaker, I reserve the balance of my time, as 
we are prepared to close on this side.
  Ms. DeGETTE. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, the gentleman from Texas says that this bill does not 
preempt State law. In fact, the bill includes a sweeping preemption of 
State law which is designed to override State laws that protect 
consumers and patients while keeping in place State laws that favor 
doctors, hospitals, nursing homes, HMOs, pharmaceuticals and medical 
device manufacturers, and other health care defendants.
  In fact, the only laws that this bill does not supersede are the ones 
that protect those groups, and that is at the great risk to patients.
  Mr. Speaker, I yield the balance of my time to the gentleman from 
California (Mr. Waxman).
  Mr. WAXMAN. Mr. Speaker, there are a number of very important reasons 
to oppose this bill, but I want to focus on one of the most egregious 
parts of the legislation that has nothing to do with medical 
malpractice. Under this legislation, if a drug or medical device 
manufacturer sells a dangerous product that causes harm to a consumer, 
so long as that product received FDA approval prior to being marketed, 
a court would be prohibited from awarding punitive damages against that 
manufacturer. This marks a dramatic change in current law by 
transforming FDA product approval into a shield against liability.
  Time and again we have seen that the FDA approval process cannot or 
does not guarantee the safety of drugs and other medical products. 
Every day our concerns increase about the adequacy of the FDA's 
postmarket safety programs. And we have seen numerous instances in 
which despite receiving FDA approval, drugs and medical devices, have 
been pulled from the market because of the emergence of severe dangers 
associated with their use.
  Mr. Speaker, we have not given the FDA the tools or the ability to 
approve a drug so that all the things that would happen after that 
approval will not occur, such as the failure of the company that 
manufactures it to make sure they follow their own safety standards; or 
that new risks that are not known at the time of the approval will 
never arise.
  We have to rely on the civil justice system as an additional layer of 
protection for American citizens. In court,

[[Page 18317]]

consumers harmed by dangerous medical products are given the 
opportunity to hold the pharmaceutical companies accountable for their 
wrongdoing. Confronted with the looming threat of liability, 
pharmaceutical and medical device companies have every incentive to 
ensure that their products are safe before they are marketed, and that 
they continue to be safe once on the market.
  We have seen mounting evidence that drug and device companies can 
withhold key data from physicians, fail to conduct needed safety 
studies, and carry out misleading advertisement campaigns even when 
they know of the risks of their products. Yet instead of safeguarding 
an individual's right to hold a drug and device company accountable for 
this kind of conduct, this legislation offers sweeping protection for 
those companies.
  A company might mislead doctors about the safety of its drug and 
continue to aggressively promote the use of a dangerous drug in spite 
of studies raising questions as to its safety. Under this legislation, 
such company would have a shield from liability for punitive damages 
for this behavior. This is an issue that should be decided on the 
evidence and in court.
  If we fail to preserve the right of Americans to hold manufacturers 
of dangerous medical products accountable, we will fail to uphold our 
responsibility to American consumers to protect against unsafe products 
and medical devices.
  Mr. Speaker, I urge opposition to the legislation.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my 
time.
  Mr. Speaker, first let me say to my colleagues who are not usually 
concerned about States rights that if they will look at section 11 of 
the bill, they will find the bill respects the right of any State to 
set a cap of any amount, be it higher or lower, than the caps in the 
bill itself.
  Mr. Speaker, the HEALTH Act is the only proven legislative solution 
to the current medical liability insurance crisis. According to the 
Congressional Budget Office, under this bill, ``Premiums for medical 
malpractice insurance ultimately would be an average of 25 percent to 
30 percent below what they would be under current law.''
  H.R. 5 allows unlimited awards of economic damages. These include 
past and future medical expenses, lost or past and future earnings, the 
cost of obtaining domestic services, loss of employment, and loss of 
business or employment opportunities. Deserving victims can be awarded 
tens of millions of dollars in damages, as we have already seen in the 
States that have similar reforms to those contained in this bill.
  Mr. Speaker, the Harvard Medical Practice Study found that over half 
of the filed medical professional liability claims they studied were 
brought by plaintiffs who suffered either no injuries at all or, if 
they did, such injuries were not caused by the health care providers, 
but rather by the underlying disease.
  H.R. 5 is modeled on California's legal reforms. Those reforms have 
resulted in California's medical liability premiums increasing at a 
rate that is only one-third the rate of those of other States.
  Mr. Speaker, we need to act, and we need to act now. The nonpartisan 
Annals of Medicine predicts that the current doctor shortage could get 
worse, and we could lose 20 percent of needed doctors in the coming 
years. Let us protect patients everywhere. Let us pass the HEALTH Act.
  Mr. AL GREEN of Texas. Mr. Speaker, I want to express my concern 
regarding the passage of H.R. 5, the Help Efficient, Accessible, Low-
cost, Timely Healthcare (HEALTH) Act of 2005 also known as the medical 
malpractice bill. Although some believe that ``reforming'' medical 
malpractice litigation will ultimately serve as a solution for 
skyrocketing healthcare premiums, it is my belief that this legislation 
is both misguided and harmful to the American people.
  One of the most contentious provisions within H.R. 5 is a $250,000 
cap on awards for non-economic damages. Placing such a cap allows 
corporations the opportunity to build into their bottom line a certain 
amount of liability. Currently, we have a judicial system that creates 
a fine balance between free corporate enterprise viability and consumer 
protection. The medical malpractice bill will disrupt this equilibrium 
in the name of reducing ``frivolous'' lawsuits without taking into 
account the implications for those making legitimate claims. This bill 
has the potential to reduce the incentive for corporations to remedy 
defective products,and instead may allow those entities to easily 
assume the loss incurred by ultimately accounting for the cost 
liability, a sum inevitably less than their sometimes lucrative 
profits.
  I respect the efforts of all of my colleagues to address the concerns 
of their constituencies. However, I would be remiss in that duty if I 
did not oppose legislation that erodes consumer protection and the 
ability of the courts to determine appropriate punitive measures for 
negligent defendants.
  Mr. ABERCROMBIE. Mr. Speaker, I rise today to support efforts to 
address the medical malpractice problem we have in this country today. 
There can be no doubt that doctors are paying excruciatingly high 
premiums and as a result, patients,and our medical system are 
suffering. However, I do not believe that H.R. 5 will do anything to 
solve this problem. As many of my colleagues have pointed out, this 
legislation will only lower expenses for the insurance industry and 
limit compensation for those victims who need it the most.
  Later in this Congress, I will be introducing legislation to offer an 
alternative to the idea of caps on compensation. Instead of limiting 
victim awards, my proposal is to limit the involvement of the insurance 
industry in the medical malpractice system. Physicians will no longer 
have to worry about the cost of their medical malpractice insurance. 
The practice of defensive medicine and its toll on our medical system 
would be eliminated.
  In addition, my proposal will ensure that the small number of doctors 
who are responsible for a large number of malpractice suits, will be 
critically examined. According to the National Practitioner Data Bank, 
11% of physicians are responsible for half of all malpractice payments 
made between September 1, 1990 and December 31, 2003.
  Yesterday, the House of Representatives passed S. 544, an important 
first step in addressing one of the root causes to the situation we 
face today. The Patient Safety and Quality Improvement Act will create 
a voluntary reporting system for errors and ``near misses.'' This 
information can then be analyzed so that better medical practices can 
be established.
  Mr. Speaker, it is time to address the other root causes of rising 
medical malpractice premiums. Caps are an old and ineffective solution. 
My proposal will be a substantive and constructive reform for the 
entire system. I urge my colleagues to keep an open mind in trying to 
solve the medical malpractice problems we face today.
  Mr. HONDA. Mr. Speaker, for the fourth time in the 5 years I have 
been a member of the United States Congress, I will be opposing a 
flawed Republican bill which would limit damage awards to patients 
injured by medical malpractice. While Republicans claim their measure 
would reduce insurance costs for doctors by discouraging frivolous 
lawsuits--which they blame for driving up insurance premiums and 
reducing access to health care for patients--the Republicans 
legislation completely ignores the rate-setting process followed by the 
insurance industry. Furthermore, a 2002 study by the Congressional 
Budget Office found that the effect of even a very large reduction in 
malpractice costs would have a small effect on individual health care 
premiums.
  This bill broadly defines ``medical malpractice action'' to protect 
HMOs, insurance companies, nursing homes and drug and device 
manufactures for a broad range of liabilities, including suits by 
physicians against those companies. Furthermore, the bill caps non-
economic awards for pain and suffering of $250,000, and punitive 
damages at $250,000 or twice economic damages, whichever is greater.
  All this measure really does is place legal obstacles on patients 
injured by wrongful conduct. Under this bill, individuals face time 
limits that would require an injured person to file health care 
lawsuits no later than three years after the date of the injury or one 
year after discovering the alleged malpractice, whichever occurs first. 
In addition, there are limits to attorney contingency fees, which would 
potentially force inured persons, faced with medical bills and lost 
wages, to finance lawsuits they otherwise cannot afford.
  Support of tort reform say large million-dollar damage awards in 
medical liability suits are the reason that the cost of malpractice 
premium insurance are so high. I believe premium increases represent 
only one part of the

[[Page 18318]]

problem facing many doctors throughout the nation and these increases 
are not necessary linked to damage awards. Even some insurance industry 
insiders say that recent increases in malpractice premiums have nothing 
to do with lawsuits or jury awards, and that tort reform will not 
reduce premiums. Rather, increases have been driven by the insurance 
underwriting cycle and insurance companies' bad investments.
  Mr. Speaker, rather than truly deal with a crisis faced by medical 
doctors, this bill is simply crafted to benefit the insurance industry 
at the expense of victims of medical malpractice. Instead of fruitless 
passing this flawed bill for the 4th time in less than five years, we 
should be working hard to provide health care to the 45 million 
Americans who are uninsured today.
  Mr. BOUSTANY. Mr. Speaker, I rise in support of H.R. 5, the HEALTH 
Act of 2005.
  The medical liability crisis have been growing over the last decade 
and is rapidly developing into a patient access crisis as well.
  Frivolous lawsuits are overwhelming our legal system and wasting 
billions of dollars each year.
  In 2004, more than 70 percent of medical liability claims did not 
result in payments to plaintiffs and only 1.1 percent of claims 
resulted in a plaintiff's verdict.
  In cases where the defendant prevailed at trial, the average defense 
costs were $87,720 illustrating the high cost of unfounded claims.
  Frivolous lawsuits further drive up costs by encouraging physicians 
to practice defensive medicine ordering additional tests that are not 
necessary to provide quality care. Physicians are also less likely to 
try new and innovative medical treatments.
  The resulting increase in medical malpractice premiums are 
threatening access to quality care by forcing physicians to move their 
practices, retire early, and limit services. The situation is 
particularly critical for ob-gyns. From 2003 to 2004, increases in 
rates for ob-gyns were as high at 66.9%. Illinois premiums rose from 
$138,031 to $230,428.
  H.R. 5, the HEALTH Act, will increase patient access to health care 
services and provide improvised medical care by reducing the excessive 
burden the liability system place on the health care delivery system. 
This bill: Ensures that patients receive adequate compensation while 
limiting non-economic damages to $250,000. Sets a statute of 
limitations of three years after the date of manifestation of injury or 
one year after the claimant discovers the injury to ensure timely 
resolution; allows the introduction of collateral source benefits and 
the amount paid to secure such benefits as evidence; authorizes the 
award of punitive damages only where: (1) it is proven by clear and 
convincing evidence that a person acted with malicious intent to injure 
the claimant or deliberately failed to avoid unnecessary injury the 
claimant was substantially certain to suffer, and (2) compensatory 
damages are awarded. Prescribed qualifications for expert witnesses.
  States including Louisiana and California that have instituted their 
own liability reforms that include caps on non-economic damages have 
shown proven success and as a result, these states are not facing a 
medical liability crisis.
  I urge my colleagues to support the HEALTH Act and ensure patient 
access to quality medical care.
  Ms. LEE. Mr. Speaker, I rise today in opposition to H.R. 5.
  Proponents of this legislation make numerous false claims.
  They claim that ``tort reform'' will magically reduce doctors' 
skyrocketing malpractice premiums.
  But the truth is that even a spokesman for the American Insurance 
Association couldn't promise price reductions with tort reform.
  Supporters also claim that capping non-economic damages will make 
malpractice insurance more affordable for doctors.
  But the truth is that the example set by my home state of 
California's MICRA law proves this isn't the case. Enacted in 1975, it 
wasn't until after 1988, when California passed insurance reform under 
Proposition 103 that malpractice insurance rates began to stabilize.
  Proponents even claim that this bill will protect patients' rights.
  But the truth is that H.R. 5 would strip away the rights of patients, 
especially women, seniors, children, and lower income families.
  But Mr. Speaker, let's give credit where credit is due. This bill 
does protect someone: It protects HMOs, the insurance industry and the 
pharmaceutical companies.
  Mr. Speaker, instead of false claims and gifts to HMOs, we need a 
bill like the Conyers-Dingell substitute that was not made in order.
  Unlike H.R. 5, the Conyers-Dingell bill is balanced and would 
eliminate frivolous lawsuits, increase competition, and reduce costs, 
without sacrificing crucial protections.
  Let's be real, Mr. Speaker. This bill is yet another example that 
shows where Republican priorities lie--with their contributors--HMOs 
and insurance companies.
  Patients and people deserve more.
  I urge my colleagues to reject the false claims and vote ``no'' on 
H.R. 5.
  Mr. BLUMENAUER. Mr. Speaker, there are two ways of dealing with the 
medical malpractice problem. One is to take the approach that the House 
Republican leadership has chosen for years; a narrowly drawn proposal 
that appeases their partisan supporters but doesn't solve the problem. 
As I said last year, the rationale was weak and there was little 
evidence it would succeed. Instead, it may do more harm to the health 
care community and doctors. Most important, because it is so narrow and 
partisan, it's very unlikely to become law. Pushing a political 
solution is the approach that has been tried repeatedly and is what 
Oregon voters rejected again at the polls last year.
  The other approach is to work cooperatively, bringing people to the 
table to make progress. This is what appears to be happening in Oregon 
in the aftermath of the last defeat. In Oregon, doctors, hospitals, and 
other healthcare professionals are working with consumer advocates, 
trial lawyers, and people from government to fashion a solution that is 
acceptable; to make progress building on cooperation and trust.
  Between the two approaches it's clear that the narrow, partisan, and 
unbalanced approach is not only questionable on its merits, but is a 
political dead end. I see no reason to change my longstanding 
opposition to both the narrow solution and to the approach that created 
it. Given the nature of the crisis of healthcare in the United States, 
the problems will only get worse; politicizing them will only put off 
the day when real progress is achieved.
  Mr. HOLT. Mr. Speaker, I rise in opposition to H.R. 5. This 
legislation will not reduce medical liability premiums, and it unfairly 
and arbitrarily discriminates against those most severely injured by 
medical errors.
  I have consistently heard from physicians in Central New Jersey that 
the rising cost of medical malpractice insurance represents a growing 
crisis. The rising premiums have compelled many physicians to leave the 
state or leave medicine altogether. My wife is a general practice 
physician, so I fully appreciate the gravity of the situation facing 
many doctors. The rising cost of insurance poses obvious dangers for 
access to care, particularly for populations most in need.
  Unfortunately, the Republican leadership has brought to the floor a 
bill that does not reduce premiums for physicians and imposes an 
arbitrary cap on damages for the most severely injured victims of 
malpractice or negligence.
  Capping non-economic damages at $250,000 for patients who have won a 
medical malpractice tort will not result in lower insurance premiums 
for physicians. Just listen to what the insurance industry itself has 
said. ``We have not promised price reductions with tort reform,'' said 
Dennis Kelly, an American Insurance Association spokesman in the 
Chicago Tribune. In fact, over the past few years, payouts for medical 
malpractice cases have remained flat while premiums have continued to 
rise, in some cases doubling.
  Because of insurance companies over-charging doctors for insurance, 
the fifteen largest insurers have accumulated a surplus that is double 
what they actually need to pay claims. We should be debating how to 
most effectively rebate this surplus to the doctors, rather than 
looking for ways to reward them for the squeeze that they are executing 
on our healthcare system. The insurance industry is gouging medical 
doctors and is trying to use patients as a scapegoat.
  Imposing a cap on damages inherently affects the patients most 
severely injured by malpractice or negligence. Setting the cap at 
$250,000 is an insult to all those who have had their lives permanently 
changed by medical errors. The figure is lifted directly from the 1975 
California MICRA law. Adjusted for inflation, this amount would be 
close to $1 million in 2005 dollars. $250,000 does not come close to 
compensating for loss of life or permanent disability or disfigurement.
  I am disappointed that, for the third time in three years, the Rules 
Committee has eliminated any opportunity to amend the legislation. I am 
particularly disappointed that the Rules Committee disallowed 
substitute legislation by Ranking Members John Conyers and John 
Dingell. Their bill would weed out frivolous lawsuits, require 
insurance companies to pass savings on to health care providers, and 
provide targeted assistance to the physicians and communities who need 
it the most. That Congress is not permitted even to consider

[[Page 18319]]

this legislation as an alternative demonstrates that the bill we have 
before us cannot survive on its own merits.
  As liability insurance premiums continue to rise for physicians 
across the country, the Republican leadership continues to prescribe 
the same tired and ineffective legislation. For good reason, this bill 
has not survived the legislative process for the past three years, yet 
we are once again debating whether to enrich insurance companies at the 
expense of victims of medical malpractice and negligence.
  We need a comprehensive, fair, and effective approach to lowering 
insurance premiums for physicians. The legislation we have before us is 
none of the above. I encourage my colleagues to oppose H.R. 5.
  Ms. DeLAURO. Mr. Speaker, we can all agree on one thing--the 
skyrocketing cost of malpractice insurance impacts every doctor and, 
indeed, every American. But contrary to what this majority has repeated 
time and again, the reason for these soaring costs has nothing to do 
with frivolous lawsuits.
  Indeed, a new report by the Center for Justice and Democracy found 
that in the last 4 years, the 15 largest malpractice insurers increased 
premiums by 120 percent--more than doubling premiums. And what about 
all those frivolous lawsuits supposedly driving those costs? The same 
report found that claims during that same period rose by just 5.7 
percent. In my State of Connecticut, the contrast between claims and 
rates is even starker, with premiums for our 3 largest malpractice 
insurers shooting up 213 percent over the last 4 years while claims 
have increased only 1.6 percent.
  So, let's call this situation what it is, Mr. Speaker--insurance 
companies gouging doctors. To inflate their own profits, insurance 
companies are putting doctors at risk, destabilizing our health care 
industry and driving up costs for everyone.
  And what is this majority's response? Granting authority to State 
insurance commissioners to order refunds for doctors when excessive 
rates are imposed? Requiring insurance companies to get approval before 
rate increases? Demanding that States set standards for actuaries to 
calculate rates?
  No. Their response: ``blame the patients.'' Limit damages. Drive a 
wedge between the parties being hurt the most by rising malpractice 
costs--doctors and patients. At all costs, it seems they are saying, do 
not hold the insurance industry's feet to the fire on this issue.
  Mr. Speaker, this debate ought to be about helping doctors--about 
doing something meaningful to ensure they can afford to continue 
practicing medicine. Instead, this bill would insulate insurance 
companies from having to follow any kind of responsible guidelines 
regarding how malpractice insurance rates are set. And, as such, this 
bill will do nothing to actually drive those rates down--an admission 
the insurance industry itself has acknowledged.
  None of this is to say that we do not need to crack down on frivolous 
lawsuits--indeed, last year I voted to penalize lawyers who file 
frivolous suits with a tough ``3 strikes and you're out'' rule. And 
today, Democrats wanted to offer a substitute, which would have taken a 
comprehensive approach to the malpractice insurance crisis. Our bill 
would have prevented frivolous lawsuits but also required insurance 
companies to pass some of their savings on to health care providers, as 
well as providing assistance to the physicians and communities who need 
it the most.
  We had also hoped to strike a provision of this bill that would have 
protected manufacturers such as the makers of Vioxx from liability. But 
again, Republicans prevented that amendment from coming to the floor 
today for consideration. And little wonder--I would not want to justify 
why Republicans were protecting the makers of a drug found to be 
responsible for thousands of deaths either.
  Mr. Speaker, in the face of premium increases that are 20 times 
faster than malpractice claims increases--frivolous or otherwise--this 
legislation is irresponsible, plain and simple. I urge my colleagues to 
do right by doctors and families by opposing this bill. Let's come back 
and pass a bill that will actually address the malpractice insurance 
crisis.
  Mrs. BIGGERT. Mr. Speaker, I rise today in strong support of H.R. 5, 
the HEALTH Act.
  Will County, Illinois, 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 my home State of Illinois. And 
more than half of OB/GYNs in the State are considering dropping their 
obstetrics practice entirely in the next 2 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. ETHERIDGE. Mr. Speaker, I rise today in opposition to H.R. 5, the 
Republican medical malpractice bill, and the process by which it is 
being debated in this House.
  Today, the House will vote on H.R. 5, a bill to impose caps on 
damages that may be awarded for medical malpractice, defective 
products, and other health related wrongdoings. Like many Members of 
this House, I am concerned about the rising cost of medical malpractice 
insurance and its impact on physicians and their patients, but H.R 5 is 
the wrong medicine for this national problem.
  I oppose H.R. 5 because it will not reduce medical malpractice 
premiums. What's more, it protects manufacturers of faulty 
pharmaceutical devices and medical equipment from product liability 
actions, and overturns North Carolina State law. H.R. 5 also limits the 
ability of injured persons to bring suits against pharmaceutical 
companies, HMOs, and nursing homes, thus setting a dangerous precedent 
allowing these entities to escape the law in even the most severe cases 
of neglect and abuse. Finally, H.R. 5 undermines North Carolina's 
patient protection statutes, which are some of the strongest in the 
Nation.
  My colleagues, Mr. Dingell and Mr. Conyers, have drafted an 
alternative amendment to H.R 5. This alternative will help courts weed 
out frivolous lawsuits without restricting the rights of legitimate 
claims, repeal the Federal anti-trust exemption for medical malpractice 
insurance companies, thereby increasing competition and lowering 
premiums, and provide targeted assistance directly to physicians, 
hospitals, and communities in medical malpractice crisis areas. 
Finally, the alternative establishes an independent advisory commission 
to examine and recommend long-term solutions to this important issue. 
Unfortunately the Republican Leadership has denied Representatives 
Dingell and Conyers the opportunity to offer this alternative.
  Mr. Speaker, the issue of medical malpractice insurance is an 
important one. H.R. 5 will without a doubt harm America's patients. I 
urge all of my colleagues to vote against H.R. 5 and to support the 
motion to recommit the bill.
  Mr. UDALL of Colorado. Mr. Speaker, I'm reluctantly voting against 
H.R. 5, which would limit medical malpractice awards.
  I am not opposed to considering legislation that would do something 
to respond to real problems. But I do not think this bill merits that 
description.
  In fact, I think the vote today has more to do with politics than 
with policy--and if I had any doubts on that point, they ended when the 
Republican leadership refused to permit any amendments at all to be 
considered. Stifling debate is not the way to develop good policy.
  As in the past, the bill's supporters argue that unless the tort laws 
are changed, doctors will not be able to afford malpractice insurance 
and so will give up providing medical care. And, again, opponents say 
the bill would do nothing to affect insurance rates.
  I think we're beating a dead horse. Both sides have dug in and aren't 
willing to compromise. In the meantime, we aren't doing anything to 
reform our medical liability system and we aren't doing anything to 
make health care more affordable and accessible for Americans.
  Our system is inherently adversarial and we've continued this finger-
pointing game and done nothing to improve patient safety and health 
care access, which is what we're really talking about here.
  I think we need a system that is non-punitive and encourages openness 
and improvement so that doctors can report medical errors without fear 
of being sued. This will help us understand medical errors and improve 
procedures and patient safety. Fewer medical errors will result in 
fewer medical malpractice suits, which in turn will help keep 
malpractice insurance rates and health care premiums down.
  That's why I have supported legislation to create a voluntary medical 
error reporting system under which patient safety organizations, on a 
confidential basis, would receive information on reported errors for 
analysis. They would then be expected to develop and disseminate 
evidence-based information to help providers implement changes in 
practice patterns that help to prevent future medical errors.
  In addition to that, I think we should explore ideas like alternate 
dispute resolution, no-fault systems, and medical courts.
  I also want to make it clear that I am not opposed in principle to 
capping damages. That

[[Page 18320]]

has been done in Colorado and some other states, and I think there is 
evidence indicating that it can help keep health care costs down and 
keeps doctors accessible. However, I think this bill's low and 
arbitrary limits on damages will hurt those at the bottom of the income 
scale the most. Also, I don't think we should be shielding large and 
powerful HMOs and drug companies from liability. So, I cannot support 
the bill as it stands.
  Mr. Speaker, ultimately this issue is about health care access and 
patient safety. If we aren't going to compromise, I hope we'd start 
thinking outside the box on how to end the logjam. I offer these ideas 
as a way to get there, because we aren't going to get there from where 
we are today.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I rise today in 
opposition to H.R. 5, the Medical Malpractice bill.
  H.R. 5 may have been conceived with good intentions, but it is a bad 
bill. It is a particularly bad bill for low income Americans.
  If a patient is injured by a caregiver due to medical malpractice, 
and that patient sues, it should be up to a judge or a jury--not the 
U.S. Congress, to decide how much compensation should be awarded.
  Injured patients who don't get their fair compensation will suffer. 
They will suffer in two ways. First of all, it's hard to put a blanket 
price on damages resulting in life or limb.
  Secondly, if the compensation is not sufficient, what will happen to 
the disabled patient when the money runs out? Who, then, will pay for 
their long-term care, or for the children of someone permanently 
disabled or even killed?
  I'll tell you who will pay for them: the American taxpayer. Those 
children and disabled people will enroll in federal programs to help 
them exist day by day. American taxpayers pay for those programs.
  Mr. Speaker, this bill won't do anything to lower the cost of health 
care.
  This legislation is good intentions that will have bad consequences. 
I ask my colleagues to consider very carefully who will end up paying 
at the end of the day.
  The American taxpayers--you and I, not the care providers at fault--
will end up paying for the damages incurred from medical malpractice.
  Mr. GENE GREEN of Texas. Mr. Speaker, I rise in opposition to H.R. 5, 
legislation to limit non-economic damages that victims may seek when 
injured by medical malpractice. My primary objection to this bill stems 
from the Congress imposing its will on the states regarding an issue 
that rests squarely within State jurisdiction.
  The states are responsible for licensing medical professionals and 
for regulating the insurance industry. In fact, the states have had 
jurisdiction over medical malpractice for more than 200 years, and it 
should continue to be that way. This legislation would unnecessarily 
preempt the laws of states that have taken measures to address this 
issue. At least 30 states have enacted laws with regard to non-economic 
damages, so it is unconscionable that anyone would argue that the 
medical malpractice issue is trapped in a regulatory vacuum.
  In 2003, the State of Texas saw a need for action on medical 
malpractice and enacted a cap on non-economic damages. Having served in 
the Texas State Legislature, I know first-hand that state legislatures 
are best positioned to determine whether and how to address the medical 
malpractice situation in their individual states. The State of Virginia 
enacted a different cap that best balances the needs of consumers, 
physicians and health care institutions in that particular state. The 
situation is different in each state, and a Washington-knows-best 
approach ignores the hard work and tough decisions that individual 
states have made.
  On a substantive level, I oppose this legislation based on two 
provisions with significant flaws. First, the bill includes a firm 
$250,000 cap on non-economic damages without providing for inflation 
adjustment in future years. While that figure mirrors California's 
MICRA law, it is important to recognize that California's cap has not 
been adjusted for inflation in approximately 30 years. Further, 
California's law was crafted during a time when a $250,000 cap would 
have sufficed for all but the most egregious jury awards--which, I 
might add, the judge has the discretion to overturn. That is certainly 
not the case in the 21st century, and I object to the Congress placing 
a price on pain and suffering. A cap on non-economic damages would 
create a one-size-fits-all figure for each and every case of medical 
malpractice. Members of Congress do not hear the details of each 
medical malpractice case. Members of juries do, which is why they are 
best equipped to determine the appropriate non-economic damages based 
on the facts of each case.
  This legislation also contains a dangerous provision that would 
provide drug companies and device manufacturers with an affirmative 
defense against punitive damages as long as their products had FDA 
approval. This provision presupposes that FDA approval is an air-tight 
process whose integrity need not--and legally cannot--be questioned. 
Considering the FDA's recent track record with regard to Vioxx and 
other pharmaceuticals that have been removed from the pharmacy shelves, 
it is clear that the integrity of the FDA approval process has been 
compromised. Until some serious reforms are implemented at the FDA, the 
FDA stamp of approval should not provide any company with an 
affirmative defense against punitive damages. Such a provision would 
only provide drug and device manufacturers with even less of an 
incentive to report known adverse events before their products go to 
market and ensure that their products are as safe as possible. Given 
these concerns, I would urge my colleagues to oppose this bill and 
leave this issue to the states, which have clear jurisdiction, as well 
as the ability and willingness to handle this delicate issue.
  Mr. WELDON of Florida. Mr. Speaker, I rise to express my strong 
support of H.R. 5 and my interest in seeing that one significant 
concern is addressed, should this bill move through the Senate.
  As a practicing physician I know how important this bill is to 
ensuring that Americans have access to good medical care. For too long 
too many limited resources have been misdirected away from patient care 
and have instead been spent to unnecessary malpractice awards and the 
practice of defensive medicine. Defensive medicine offers little in 
terms of better patient outcomes, but it adds billions of dollars to 
the cost of medical care. I know this not only because studies show 
this is the case, but I used to practice defensive medicine every day.
  This bill makes sure that there is fair treatment for those 
individuals who do suffer serious adverse medical outcomes, while 
ensuring that our legal system is not overwhelmed with frivolous 
lawsuits.
  A serious concern I have with the bill, and an issue I have raised 
with the chairman and others, is how it treats liability reform for 
manufacturers of drugs and vaccines. With respect to pharmaceuticals we 
are often unable to recognize all adverse reactions until we have post-
marketing information. This post-marketing safety data, such as in 
cases like Vioxx, is provided to FDA on a voluntary basis by the 
manufacturers. I agree with the intent of the bill which is to ensure 
that Americans have greater access to potentially live saving 
pharmaceuticals. However, it is equally important that we fully examine 
the implications of such provisions on safety and the willingness of 
manufacturers to come forward with adverse information.
  I am also concerned that H.R. 5 offers significant liability 
protection for vaccine manufacturers, while failing to fix the broken 
vaccine injury compensation program (VICP). It is critically important 
that these two not be separated. The VICP is very broken and it would 
be wrong to cut off access to the courts without addressing the serious 
deficiencies that exist in the compensation program today. As it 
operates today, the VICP has essentially imported the tort system into 
the program. That was not how the program was designed to operate. If 
both the liability problem and the VICP deficiencies are not fixed 
fairly, then our nation's immunization program will suffer serious 
problems and parents could increasingly reject childhood immunizations 
for their children.
  Mr. DINGELL. Mr. Speaker, I rise in strong opposition to H.R. 5. The 
Republican leaders of this House have denied us our right to offer an 
alternative to the over-broad and ill-conceived legislation that is 
before us today and have bypassed both committees of jurisdiction. Why 
are they so afraid?
  Are they afraid we will demonstrate that their bill will create 
excessive litigation as opposed to reducing it? H.R. 5 is ambiguously 
drafted, leaving its readers to surmise what its provisions could 
possibly mean. Federal and State courts would take years trying to sort 
it all out.
  Are they afraid we will discuss how their legislation shields HMOs, 
insurance companies, and drug manufacturers from all sorts of 
skullduggery? The proponents of this legislation offer no evidence that 
these privileged industries need additional protections, yet H.R. 5 
grants them a special status under the law that is unprecedented.
  Are they afraid we will show how this unprecedented immunity bath for 
their favorite industries will hurt the rights of injured patients? 
There is a human cost to this legislation that we must not forget.
  Are they afraid we will tell how H.R. 5 would hurt women, seniors, 
and low-income families

[[Page 18321]]

by limiting non-economic damages to $250,000? Because a large part of 
economic damages is an individual's income, such a system would place a 
higher value on the lives of CEO's. My friends, every human life is 
worth more than $250,000.
  Unfortunately, my Republican colleagues are quite determined to move 
quickly and harshly. Their legislation reaches well beyond malpractice 
and offers no guarantees of assistance to providers and communities. 
Physicians and patients are asked to cross their fingers and hope that 
some of the benefits given to large corporations will trickle down to 
them. And women, seniors, and low-income families are left to pay the 
human cost of these corporate benefits. It is wrong.
  But the rising cost of malpractice insurance is a real problem--
requiring careful, balanced, and targeted legislation. Regrettably my 
colleagues will not have the opportunity to vote for the balanced 
package that my friend from Michigan, Mr. Conyers, and I have crafted. 
Perhaps their greatest fear is that you would prefer a bill that truly 
helps physicians, hospitals and nurses, while protecting the rights of 
patients and doctors over HMOs. I urge you to support the motion to 
recommit and oppose final passage of H.R. 5.
  Mr. STARK. Mr. Speaker, we have been told that weapons of mass 
destruction required an invasion of Iraq, that ketchup is a vegetable, 
and that global warming is a vast, left-wing conspiracy. Now, the great 
minds of the Republican Party want us to believe that lawyers are to 
blame for skyrocketing medical malpractice insurance premiums.
  Respected insurance, health care, and legal experts all show that 
insurance companies, with their record surpluses, are to blame for 
rising premiums. Who are you going to believe? I cast my vote with the 
experts, and against H.R. 5, the so-called Help Efficient, Accessible, 
Low-cost, Timely Healthcare (HEALTH) Act of 2005.
  This bill arbitrarily caps payments for pain and suffering at 
$250,000 and extends liability protection not only to doctors, but to 
HMOs, nursing homes and manufacturers of drugs and medical devices. 
Furthermore, the President and other Republican proponents claim that 
this bill will halt skyrocketing medical costs. That's hogwash. Even 
the non-partisan Congressional Budget Office has found that the this 
bill would have a negligible effect on health care spending, ultimately 
reducing insurance premiums by less than one-half of one percent.
  Ineffective legislation is one thing, but this bill is legislative 
malpractice. It would mean that a child permanently disabled by an 
incompetent doctor would receive only $250,000 to be compensated for a 
lifetime of pain and the inability to lead a full life. If this bill 
were enacted, nursing homes that abuse our seniors, HMOs that deny 
critical care, and drug companies that market dangerous drugs like 
Vioxx can take your life for a guaranteed low price set by their 
friends in Congress.
  The implication of limiting damages and attorneys' fees is that 
greedy lawyers and their irresponsible clients are somehow faking 
medical errors or blaming natural medical problems on innocent doctors. 
Given that medical errors are the eighth-leading cause of death in this 
country, exceeding car accidents, breast cancer, and AIDS, that 
suggestion is off base. Anyone who's ever been at the bedside of 
someone in the hospital and received 12 different answers from 12 
different care providers about treatment instructions knows the risk of 
a serious medical error.
  This bill does nothing to reduce medical errors, and it won't reduce 
malpractice premiums. Between 2000 and 2004, claims payments rose by 
less than 6% while insurers' net premiums rose by 120%. The money isn't 
going to lawyers--it is padding the pockets of wealthy insurance 
companies, and they have no intention of ending the windfall even if 
this bill passes.
  I support the Democratic bill, which Republican leaders won't allow 
to come up for a vote. That bill reforms the insurance industry--breaks 
up insurance monopolies and gives doctors the right to challenge 
premium increases--and has sensible tort reform without blocking 
compensation for injured patients. Unlike the Republican bill, any 
savings by insurance companies would be required to actually reduce 
malpractice insurance premiums and 50% of punitive damage payments 
would go to the Agency for Healthcare Research and Quality to reduce 
medical errors.
  If high premiums and medical errors are the problem, the Democratic 
bill seems like a logical solution. So logical in fact, so tempting 
even to my Republican colleagues, that their leadership won't even 
allow them to vote on the Democratic alternative. I urge my colleagues 
to reject this sham and force this House to consider real legislation 
to solve this national crisis.
  Mr. RYUN of Kansas. Mr. Speaker, I rise today in support of H.R. 5, 
the next step in the ongoing struggle to reform medical malpractice 
liability. Skyrocketing insurance premiums are debilitating our 
Nation's health care delivery system and liability insurers are either 
leaving the market or raising rates to excessive levels. In turn, more 
physicians, hospitals, and other health care providers are severely 
limiting their practices, moving to other states, or simply not 
providing care. Without a change, the exodus of these providers from 
the practice of medicine will continue, and patients will find it 
increasingly difficult to obtain needed health care.
  H.R. 5 would help to lower the costs associated with health care 
coverage by encouraging the speedy resolution of claims, limiting 
lawyers' fees, and imposing caps on non-economic damages.
  I urge the House to once again pass medical malpractice reform to 
help lower the cost of quality health care and make it accessible to 
more Americans.
  Mr. CARDOZA. Mr. Speaker, I rise today to share my concerns about 
H.R. 5 and to urge my colleagues to support the Democratic Motion to 
Recommit.
  I think we all agree that skyrocketing medical malpractice premiums 
are spiraling out of control and demand our immediate attention.
  As a former member of the California Legislature, I voted to uphold 
MICRA on three separate occasions and I think that doctors everywhere 
deserve the same protection. MICRA is a model for federal reform 
because it has produced a stable, competitive medical liability 
insurance market while ensuring prompt and fair payments to those 
injured and in need.
  While I am pleased that H.R. 5 adopts the basic framework of MICRA, I 
am deeply concerned about other elements of the bill that provide cover 
to special interests, including liability protection to HMOs, 
pharmaceutical manufacturers and medical device manufacturers.
  Now is not the time to give greater protections to pharmaceutical 
companies that put unsafe drugs like Vioxx on the market. Such 
protections have nothing to do with the liability insurance crisis 
facing doctors and should be stripped from this bill.
  I am also concerned that the caps California established in 1975 
under MICRA were never indexed to inflation: To provide the same level 
of compensation in today's dollars, the cap would have to equal 
$800,000. Put another way, the $250,000 MICRA cap has decreased in 
value since 1975 to approximately $70,000.
  With that in mind, I believe we should adjust the $250,000 cap to 
reflect its current value. As we all know, health care costs--including 
hospital charges and medical fees--have risen dramatically since 1975. 
If we are going to model our national law after the 1975 MICRA model, I 
suggest that we start by using realistic figures that reflect 2005 
dollars.
  Despite these concerns, in 2003 and again last year, I voted for H.R. 
5 with the expectation that improvements would be made in conference 
with the Senate.
  Unfortunately, that did not happen, and today we are considering a 
bill under a Rule that blocked a number of reasonable amendments, 
including a substitute offered by my colleague from Michigan, the 
ranking member on the Judiciary Committee.
  While I plan to support this legislation today, my continued support 
is predicated on substantial changes as the Senate attempts to align it 
more closely to California's MICRA law. If this happens, I will support 
the conference report.
  However, I--as well as a number of physicians I know--will oppose a 
bill that provides inappropriate protection to drug companies, HMOs and 
medical device makers.
  I hope that my colleagues in the House leadership will take these 
concerns into mind as debate moves forward on this critically important 
issue.
  Mr. MANZULLO. Mr. Speaker, the United States has been blessed with 
the best system of medicine in the world. But we are having a crisis of 
access. This problem is not a case of whether a patient has health 
insurance. You may not be able to find a doctor to treat you.
  The headlines are replete with stories of women having to drive 
several hours because they cannot find a doctor to deliver their baby. 
If you are in a car accident in southern Illinois and need a 
neurosurgeon, you will be airlifted to another State because there are 
no neurosurgeons left to treat you.
  Litigation has escalated and awards have skyrocketed. Multi-million 
dollar court decisions and jury awards have left doctors with medical 
liability premiums increase 40 to 50 percent per year.
  Doctors in certain fields of high-risk fields of medicine can expect 
to be sued at least once in their career.

[[Page 18322]]

  As a result, doctors are retiring or leaving the practice of 
medicine. Emergency rooms and rural facilities have closed. Many other 
doctors are moving to States that have taken action to cap jury awards, 
which stabilizes malpractice costs.
  I know of one OB-GYN in Illinois who left her practice to go back to 
being a pharmacist where she could earn more money and not worry about 
malpractice premiums. She explained that after paying malpractice 
insurance, she and another physician made $50,000. A third doctor made 
$60,000 and the fourth doctor made $70,000. Their office manager made 
more than all of them: $75,000.
  Thirty years ago, California passed comprehensive medical liability 
reform. According to the Department of Health and Human Services, 
States that have limited noneconomic damages have seen premium 
increases by less than 20 percent. States without limits on noneconomic 
damages have seen premiums increase on average of 45 percent.
  This is quantifiable evidence that medical liability reform works. I 
urge my colleagues to vote for H.R. 5.
  Ms. ESHOO. Mr. Speaker, for 4 years we've been debating what to do 
about the malpractice premium crisis. We clearly have a problem but 
what's not so clear is what the solution should be.
  I'm a Californian, and in my State, we have a law titled the Medical 
Injury Compensation Reform Act, MICRA, that has been mentioned many 
times on the floor. This law was passed by a Democratic legislature and 
signed by a Democratic governor in 1975. It's been on the books ever 
since, without a single change. MICRA has contributed to stabilizing 
premiums in California, but without other reforms, we would still be 
facing the same skyrocketing increases as other States.
  The Help Efficient, Accessible, Low-cost, Timely Healthcare, HEALTH, 
Act of 2005 has been described as a Federal version of MICRA. I 
respectfully dispute this assertion.
  The HEALTH Act places a $250,000 cap on noneconomic damages for suits 
against physicians, insurers, HMOs and nursing homes as well as drug 
and medical device manufacturers. MICRA limits that cap solely to 
physicians. The Health Act also places a cap on punitive damages. MICRA 
does not.
  One of the reasons MICRA has worked is because it's prescribed in its 
scope. If we're to get to the heart of exorbitant medical malpractice 
insurance, we have to focus our efforts on those who truly need our 
help. I'm concerned that extending these provisions to those outside of 
the physician community may have a harmful effect on patient care and 
on our legal system.
  Patients must also be fairly compensated for any wrongs that befall 
them, but this bill also uses MICRA's cap level of $250,000, which has 
not been updated for inflation since the law was passed in California 
in 1975. When adjusted for inflation, $250,000 from 1975 is now worth 
only approximately $68,000.
  This bill also does not contain any mechanism for studying the 
insurance industry and its role in the premium crisis. A review of the 
insurance industry is critical to understanding the problem and 
possible solutions. While MICRA was enacted in 1975, premiums in 
California continued to rise. MICRA did not address, collectively, the 
problem of rapidly escalating premiums faced by California doctors. 
Only because California voters enacted stringent insurance rate reform 
after tort reforms failed did doctor's premiums fall.
  In 1988, California enacted insurance reform law, Proposition 103, 
which has saved physicians and other medical providers hundreds of 
millions of dollars by regulating the premiums insurance companies are 
allowed to charge. Premiums dropped and stabilized in the years 
following passage of Proposition 103. I urge my colleagues to 
accurately look to the experience in California. My State enacted both 
tort limits and insurance reform.
  This is a multi-faceted problem. If we are to truly help physicians, 
we have to look at this issue from all angles and implement solutions 
across all levels.
  For these reasons, I urge my colleagues to oppose the HEALTH Act.
  Mr. BACA. Mr. Speaker, I rise in opposition to H.R. 5, the Republican 
Medical malpractice bill.
  This bill is bad medicine for American consumers. It is a bitter pill 
for our seniors, our children, and the middle class.
  The Republican majority will stop at nothing to prevent access to the 
legal system for those who are hurt. First they said that all they 
wanted to do was limit class action lawsuits to Federal courts. Now 
that they have succeeded, they are back again, to take more rights away 
from American patients and consumers.
  Mr. Speaker, the majority will distort the facts, but the American 
people will not be deceived.
  The bill places a $250,000 cap on pain-and-suffering awards in 
medical malpractice lawsuits. $250,000. Is that what a lifetime of pain 
and suffering at the hands of malpractice is worth?
  Would you want your mother, grandfather or child to be in that 
situation? As the bills pile up, and the Republicans say, sorry, but we 
have sold out to the special interests?
  The bill makes it much harder for patients injured by medical errors 
to seek redress. It shortens the time for patients to prove they were 
hurt by malpractice. It gives legal immunity to drug makers, those same 
companies that have already killed and maimed people with products that 
were prematurely released on the market.
  Many of us are alarmed at the skyrocketing cost of medical care, 
including patients, who are the consumers. However, medical malpractice 
is not the reason for these increasing costs. It is medical 
mismanagement and corporate greed.
  The Washington Post had an article this past weekend about the health 
care system for our seniors. The frightening truth? Some health care 
providers deliberately, or indifferently, provide bad medical care, so 
that they can increase the costs of treatment, while patients become 
even sicker. Wounds become infected, equipment is covered with dust, 
and sterile techniques are not used.
  It sounds like the plot of a bad medical thriller, or medical 
practice in some remote corner of the globe, but it is happening, right 
here in America, to your father or mother, grandmother or grandfather.
  So, I say, stop picking on the legal system, which fights for the 
rights of the poor, the sick, the elderly, and the injured.
  Many of the rights that consumers enjoy today are the result of path-
breaking legal decisions and the lawyers who were willing to stand up 
and fight.
  The Republicans would like to take us back to a darker time, when 
corporations ruled and the underserved had no rights. We must say, no; 
we must oppose this bad medicine. Enough is enough. We must oppose this 
bad bill.
  Mr. SCOTT of Georgia. Mr. Speaker, one of the greatest challenges 
facing our Nation's health care system today is the medical malpractice 
insurance crisis. My State of Georgia is one of 18 States that have the 
highest, most significant medical malpractice insurance premium costs, 
and it is costing our Georgia and our entire country dearly. Because 
when our health care industry is in danger, we are all threatened.
  Who among us is not a patient, who among us does not need and deserve 
quality medical care? At its heart, this crisis is a patient care 
issue. Every one of us wants ourselves and our loved ones to receive 
the highest quality health care possible.
  We have to address the issue of medical malpractice insurance and the 
extremely high cost of health care. In 2000, Georgia physicians paid 
more than $92 million to cover jury awards. That amount was the 11th 
highest in the Nation despite the fact that Georgia ranks 38th in total 
number of physicians in the United States.
  Forty percent of the State's hospitals faced premium increases of 50 
percent or more in 2002. St. Paul, the State's second largest insurance 
carrier, stopped selling medical liability insurance last year. 
Remaining insurers have reportedly raised rates for some specialties by 
70 percent or greater. Some emergency room physicians, OB-GYNs and 
radiologists have not yet found a new carrier.
  Our health care system is suffering immensely, but some say that this 
moment in time will pass, that this crisis does not warrant taking 
serious action. But study after study proves them wrong.
  Earlier this year, the Georgia Board for Physician Workforce released 
a study showing the effects of the medical liability crisis on access 
to health care for Georgia's patients. For example, the study shows 
that 17.8 percent of physicians, more than 2,800 physicians in Georgia, 
are expected to limit the scope of their practices which is by far the 
largest effect of the medical liability insurance crisis on access to 
medical care.
  These physicians are expected to stop providing high-risk procedures 
in their practices during the next year in order to limit their 
liability risk. Nearly 1 in 3 obstetrician/gynecologists and 1 in 5 
family practitioners reported plans to stop providing high-risk 
procedures, indicating that access to obstetrical care may be 
significantly reduced during the next year as a result of the medical 
liability insurance crisis.
  In addition, nearly 11 percent or 1,750 physicians reported that they 
have stopped or plan to stop providing emergency room services. Six 
hundred and thirty physicians plan to

[[Page 18323]]

stop practicing medicine altogether or leave the state because of high 
medical malpractice insurance rates. About 13 percent of doctors 
reported that they had difficulty finding malpractice insurance 
coverage.
  In fact, at one particular Georgia hospital, the hospital could not 
give credentials to a surgeon and add that physician to its staff 
because the surgeon could not afford to buy medical malpractice 
insurance. In another instance, an obstetrician-gynecologist had to 
close his Georgia practice and work for a health care agency because he 
could not afford to buy medical malpractice insurance.
  What happens to the patients that his hospital could have treated but 
now it cannot because it does not have the surgeons that it needs? What 
happens to the mothers who need a doctor to provide pre- and post-natal 
health care but cannot find one because doctors are leaving the 
profession due to the high cost of medical malpractice care?
  In addition, Georgia is heavily dependent on other states to train 
physicians. Approximately 70 percent of participating physicians in 
Georgia completed training in another State. High costs of medical 
malpractice liability insurance may reduce the attractiveness of 
Georgia as a location for medical practice. High professional liability 
insurance costs are a significant financial problem for teaching 
hospitals, reducing the already limited funding available for faculty, 
residents, and other medical education costs.
  Even more upsetting, the high cost of medical malpractice insurance 
for doctors and hospitals disproportionately affects seniors, minority 
and low-income patients. The physicians and hospitals who depend on 
Medicare reimbursements and who serve the over 44 million uninsured 
Americans every day cannot afford to pay higher insurance premiums. We 
need to ensure that these communities have access to quality health 
care and the best physicians or the health disparity that currently 
exists will continue to deepen and create a two-tier health care 
system.
  But it is not only medical care in the present that is threatened, 
but also into the future. Many of the medical schools in our State are 
saying now that many of students are having second thoughts about even 
coming into the medical profession.
  These statistics prove that Georgia's doctors cannot wait. More and 
more each day, good, principled health care providers are confronting 
the possibility of being unable to treat their patients because of out-
of-control medical malpractice insurance premiums. There is no question 
that Congress must act, and act immediately.
  I support H.R. 5 because doctors, hospitals, and the health care 
industry are caught in the middle between insurance companies and 
lawyers. Doctors are being squeezed by their medical malpractice 
insurance premiums and by the high amounts being awarded to injured 
patients. Doctors need to see results; they need to know that if this 
bill becomes law that their insurance premiums will go down. The 
message must reach the insurance companies that premiums have to go 
down so that the medical profession can survive and access to health 
care is improved. The health care industry must have relief and this 
bill, although not the final answer, is the first step in addressing 
the problems that affect doctors and the health care industry.
  We must help doctors, physicians and dentists, hospitals, other 
health care providers, and, ultimately, American patients who are 
suffering in untold ways. Immeasurable damage is occurring in our 
Nation's health care delivery system because of the high cost of 
medical malpractice insurance. With the passage of this bill, the House 
of Representatives will send a clear and salient message to the 
insurance industry, and that message is: Bring down the cost of medical 
malpractice insurance for physicians and hospitals.
  Mr. LARSON of Connecticut. Mr. Speaker, I rise today in opposition to 
H.R. 5, the so-called HEALTH Care Act of 2005. Quite simply, the 
problems that we should be addressing today are burdensome malpractice 
insurance rates, patient safety, and access to health care. This bill 
addresses none of these. In another attempt to cede power from States 
to the Federal Government, this bill would impose nationwide limits on 
the compensation injured persons can receive in medical malpractice 
cases.
  We have all heard the stories of doctors leaving their practices 
because they cannot afford their malpractice insurance rates. For the 
6-year period from 1998 through 2003, medical malpractice insurance 
premiums in my State of Connecticut increased, depending on the 
insurance company, between 37 percent and 241 percent for internal 
medicare, 35 percent and 185 percent for general surgery, and 45 
percent and 128 percent for obstetrics/gynecology. During that same 
period of time, the consumer price index only rose 13 percent and the 
medical consumer price index rose 24 percent. I certainly cannot 
imagine running a business where one of my expenses was that out of 
line with the rest of my income and expenses. How can we expect doctors 
to do that when they provide such an important service to us all? The 
end result is the loss of good doctors practicing and diminished access 
to health care. The bill we are debating today does not address the 
underlying problem and has many flaws.
  First, it would remove authority on the issue of tort reform from 
States, where it has traditionally resided, and preempt various areas 
of State law, including important consumer protections. Each State has 
its own issues with regard to medical malpractice and tort law and a 
one-size-fits-all solution imposed by the Federal Government is not the 
answer.
  Second, it would restrict the ability of injured patients to be 
compensated for their injuries. An inflexible $250,000 cap on 
noneconomic damages would punish victims of malpractice and cause 
significant inequalities in compensation for women, children, seniors, 
and lower-income workers. A woman who loses a pregnancy or her 
fertility is not judged to have high economic value, but juries can 
recognize the human value of her losses. A child with no job or income 
will obviously have a limited economic value, but juries can recognize 
the human value of his future. Even with the same injuries, a corporate 
CEO would receive a much larger economic damage award than a minimum-
wage worker or a mother who stays at home to raise her kids, but a jury 
can recognize the human value of their pain and suffering.
  My final objection to this legislation is the manner in which it was 
brought to the floor. It was never debated in committee and was 
reported to the floor with a closed rule. In fact, the Rules Committee 
has rejected 67 amendments to this legislation over the past 3 years. 
This is the third time the House has voted on this legislation in the 
past 3 years and the third time it has been the wrong answer for 
doctors and patients. This is just another example of the majority 
bringing the same legislation to the floor year after year knowing that 
it will go nowhere because it is the wrong answer for Americans. 
Legislation offered by the ranking members of the Judiciary Committee 
and the Energy and Commerce Committee, Mr. Conyers and Mr. Dingell, 
have been ignored as well as legislation offered by the gentlewoman 
from South Dakota, Ms. Herseth. Americans deserve to have all of these 
bills debated side by each.
  Mr. Speaker, I conclude by urging my colleagues to join me in 
opposing H.R. 5 and working on real solutions for reasonable 
malpractice rates, improved patient safety, and accessible health care.
  Mr. JEFFERSON. Mr. Speaker, H.R. 5--the so-called HEALTH Act of 
2005--is anything but healthy.
  If there was even the remotest possibility that H.R. 5 could help get 
efficient, accessible, low-cost, timely health care to the American 
people, it would probably get 435 votes in this House.
  However, H.R. 5 does absolutely nothing to achieve the admirable 
goals embodied in its misleading name. It does absolutely nothing to 
address the specific problem it is purported to fix: skyrocketing 
medical malpractice insurance premiums.
  Let me be perfectly clear. I am in complete agreement with this 
bill's supposed and stated purpose: to help get efficient, accessible, 
low-cost, timely health care to all Americans. I agree that one of the 
obstacles to low-cost, accessible health care is outrageous medical 
malpractice liability insurance premiums charged to physicians and 
other health care providers throughout our Nation. I also agree that 
some litigation strategies contribute to the escalating costs of our 
Nation's health care by encouraging providers to order tests, 
procedures and treatments that may not be medically necessary. I agree 
with the supporters of H.R. 5 that high malpractice insurance premiums 
charged by carriers have led some physicians to abandon high-risk 
specialties and patients.
  I ask you though to look at the legislation before us. H.R. 5 
contains about 4,000 words. In those 4,000 words, the word ``premium'' 
appears only once; the word ``insurance'' appears only 5 times; and the 
word ``cost'' appears 14 times, the vast majority in the definitions 
and not the operative clauses of the bill.
  I ask you to consider whether H.R. 5 is really about skyrocketing 
medical malpractice insurance premiums as its proponents claim. I have 
looked very carefully at this bill, and, after much reflection, have 
reached the only reasonable conclusion: It is not.
  I stand here today because someone needs to stand up for American 
physicians. Someone

[[Page 18324]]

needs to stand up for the American health care system.
  The proponents of H.R. 5 tell us medical malpractice insurance 
premiums are skyrocketing out of control. There is no dispute that 
malpractice insurance premiums are increasing at an alarming rate. We 
agree on that.
  There is no question that medical malpractice premiums are escalating 
across the country, particularly for physicians in high-risk 
specialties and certain geographic centers. In some cases, premiums 
have increased so dramatically that physicians have relocated their 
practices, reduced their services, or retired early. While there is 
little doubt that something must be done to alleviate this crisis, H.R. 
5 is no solution.
  Our friends on the other side of the aisle believe that if you limit 
the amount that insurance carriers have to pay for legitimate claims, 
then insurance rates will fall.
  But I ask you to consider the fact that the American Insurance 
Association--the American Insurance Association--has repeatedly and 
specifically denied that tort reform will result in premium savings. 
Sherman Joyce, the president of the American Tort Reform Association, 
has stated, ``We wouldn't tell you or anyone that the reason to pass 
tort reform would be to reduce insurance rates.''
  So, by the insurance industry's own admission, H.R. 5 will not stem 
the tide of rising medical malpractice insurance rates. Nevertheless, 
our friends on the other side would have us believe that limiting the 
exposure of insurance carriers is a panacea. It is not.
  H.R. 5 is a hoax. It is a sham, and our friends on the other side 
know it. It is a fraud on the American medical establishment by 
insurance carriers who want to limit their exposure but will not commit 
to reducing premiums.
  Please read the bill. H.R. 5 has absolutely no provision requiring 
the reduction of medical malpractice premiums, despite the fact that 
our friends believe that it is these high premiums that are crippling 
the health care system. Nevertheless, there is not a single word in 
this bill that directly calls for reductions in premiums: zero, zilch, 
nada, nothing, and they know it. It is a scam. H.R. 5 is absolutely 
nothing more than a boon, a windfall for the insurance industry.
  Our friends on the other side tell us that damage caps will solve the 
premium crisis. Mr. Speaker, I ask that you consider the fact that in 
States that have enacted caps, the medical malpractice insurance 
premiums are higher than in States that have no caps. The carriers do 
not want us to know that.
  In fact, in California--the State the other side holds up as a 
shining example of the benefits of legislation like H.R. 5--the average 
premium is $27,570, fully 8 percent higher than the average of all 
States that have no caps on noneconomic damages.
  Recently, the American Medical Association issued a list of States 
that it concluded were in crisis due to exploding medical malpractice 
insurance rates. Five of those States have caps on noneconomic damages 
like the one proposed in H.R. 5. Yet, Mr. Speaker, they are still in 
crisis.
  One of those States is Florida, where, despite having caps of just 
the kind proposed by H.R. 5, obstetricians and gynecologists pay the 
highest premiums in the Nation for medical malpractice insurance, some 
in excess of $200,000 per year. Florida has caps, and Florida has a 
crisis. So, Mr. Speaker, damage caps alone are not the solution to the 
problem.
  If you look further at the California example, it becomes clear that 
damage caps alone are not an effective premium-reduction measure. In 
the 12 years after California passed MICRA, medical malpractice 
premiums rose 190 percent. Only after California passed Proposition 
103--actual insurance reform--did medical malpractice premiums 
stabilize. Since California passed insurance reform--not medical 
malpractice reform--its medical malpractice premiums have been more 
stable than in most States.
  Mr. Speaker, the lesson to be learned from California is that 
measures like H.R. 5 do not reduce medical malpractice insurance 
premiums. The facts simply do not bear it out.
  Nevertheless, Mr. Speaker, our friends on the other side insist that 
one-size-fits-all approach of H.R. 5 is the last and best cure for the 
crisis of escalating malpractice insurance rates.
  Some of our colleagues are, like me, very deeply concerned about 
rising malpractice insurance rates. Some of our colleagues have 
expressed an inclination to vote for this bill in order to get the ball 
rolling, in order to take a first step toward solving the premium 
crisis. But I want to be very clear: If H.R. 5 is our first step, as 
the saying goes, it's a doozy. It is a step on the backs of doctors, 
hospitals and patients to help out greedy insurance carriers. It is 
certainly a step in the wrong direction. H.R. 5--as the best evidence 
proves--is an ill-conceived, ill-advised bill that will not--let me 
repeat--will not solve the problem. This bill helps insurance 
companies--period.
  Recent articles in newspapers across the country show in clear and 
compelling ways that this crisis is as complex as it is serious. 
``Malpractice litigation is only part of the cause of the huge 
increases in insurance premiums. The insurance industry's pricing and 
accounting practices . . . play [at least] as big a role.''
  The insurance company patrons of our friends on the other side want 
to hide behind what they consider out-of-control jury awards. Again, 
Mr. Speaker, the facts simply do not support this claim.
  Over the past few years, many physicians have been hit with medical 
liability premium increases of 25 to 400 percent. Yet, according to The 
Journal of Health Affairs, during the past decade, malpractice payouts 
have grown approximately 6.2 percent per year. That's almost exactly 
the rate of medical inflation: an average of 6.7 percent between 1990 
and 2004.
  Moreover, contrary to the claims of proponents of H.R. 5, juries are 
not overly sympathetic to plaintiffs, as evidenced by the rate at which 
physicians prevail in medical malpractice suits. Dr. Barry Manuel, 
chairman and CEO of ProMutual Group, one of the Nation's leading 
malpractice insurance carriers, reported in 2001 that ``we continue to 
close 60 percent of all claims without payment, and of those cases we 
are forced to defend in court, we prevail in 90 percent.'' In addition, 
many of the leading scholars studying the problem have concluded that 
despite conventional wisdom, juries in fact often favor physicians.
  Neil Vidmar, a professor at Duke University School of Law and a 
leading scholar in the field, states unequivocally that ``the assertion 
that jurors decide cases out of sympathy for injured plaintiffs rather 
than the legal merits of the case . . . have been made about 
malpractice juries in the United States since at least the nineteenth 
century. Yet, research shows no support for these claims.''
  So, Mr. Speaker, one begins to wonder what has caused such 
extraordinary increases on medical malpractice insurance premiums 
during the past few years.
  Well, investment losses, like those of average Americans, and a weak 
economy have made a greater dent in the bottom lines of insurance 
companies than malpractice payouts.
  The difference between insurance companies and average Americans is 
that most of us can't give ourselves a raise to cover our losses. A 
medical malpractice insurance company can--and does. It alone controls 
the premium rates it charges our country's doctors. I think you can 
guess what malpractice carriers have done in response to the general 
economic climate in the past few years.
  The truth is that medical malpractice insurance carriers are asking 
doctors, hospitals and patients to pay for underperforming investments. 
It is as simple as that. They know it. We have asked the insurance 
carriers to commit to reducing premiums in this bill. They will not do 
it. They will not even talk about it. That is because they have 
absolutely no intention of reducing medical malpractice insurance 
premiums.
  The bottom line is that H.R. 5 is a jackpot for insurance carriers, 
and it is the doctors, hospitals and patients that are going to pay for 
it.
  Mr. Speaker, I want to talk for just a minute about the cap on 
noneconomic damages. If H.R. 5 becomes law, we will be speaking with a 
loud and clear voice that the injuries victims of medical malpractice 
suffer are valued in direct relation to how much money those victims 
have. The unfortunate consequence of this legislation is that--
regardless of the severity of your injury, regardless of how long you 
suffer, regardless of its effect on even the most basic functions of 
your life, the things we take for granted every day, regardless of 
whether you can ever play with your children again, regardless of 
whether you can ever hug your grandchildren again, regardless even 
whether you or your child or your wife or mother die due to medical 
malpractice--no one's injury is ever worth more than $250,000.
  Our friends on the other side of the aisle like to equate 
``noneconomic damages'' with ``pain and suffering.'' But ``pain and 
suffering'' is a misleading label. What is capped is recovery for 
disability and disfigurement, among other things, not just ``pain and 
suffering.'' H.R. 5 lumps together everything that is not ``economic'' 
and calls it ``noneconomic''--subject to a $250,000 cap that the bill 
does not even adjust for inflation.
  Our friends on the other side of the aisle go to great lengths to 
emphasize that H.R. 5 in no way limits economic damages as long as they 
are objectively quantifiable monetary damages. In other words, if a 
surgeon loses

[[Page 18325]]

his hand and is unable to perform surgery again, the injury he will 
suffer is greater than that suffered by a carpenter who loses his hand 
due to medical malpractice and is never again able to do his job. Why? 
Well, under H.R. 5 the answer is simple: The surgeon makes more money, 
so his economic damages are greater. Not to worry, they tell us, both 
of them can get up to $250,000 in addition to soothe their wounds.
  The same is true in the case of an injury suffered by a working 
mother when compared to a mother working inside the home. Do our 
friends on the other side of the aisle believe that those women's 
husbands or children will understand the difference?
  At many jobs, the loss of a leg, for example, may not prevent a 
worker from earning a living. But it will make it difficult to enjoy 
``noneconomic'' pursuits like playing soccer with your kids, or 
basketball and volleyball with friends, or a multitude of other things 
that make life enjoyable.
  Mr. Speaker, H.R. 5 instructs that the value of life is capped at 
economic losses plus $250,000. That seems inconsistent with the 
administration's recent characterization of the value of life as 
``immeasurable.'' Remarkably, our friends on the other side of the 
aisle have taken out their calculators, and they have measured the 
immeasurable. Perhaps they should call the White House, and let them 
know.
  While the proponents of H.R. 5 appear already to have figured it all 
out, I want to ask them: How much is hugging your grandchildren worth? 
How much is kissing your husband or wife worth? How much is the ability 
to walk or to drive or to play a round of golf worth? How much is your 
ability to feed, bathe and clothe yourself worth? How much is seeing 
your children grow up worth? How much is your life worth?
  I honestly don't know, and I don't think we should be answering those 
questions for every American either.
  Whether it's losing a limb, or an eye, or just the freedom to be able 
to go where you want and do what you want, how many of us would trade a 
lifetime of disability or disfigurement, not to mention pain, for 
$250,000?
  The very real consequence of this legislation is that it punishes the 
most economically vulnerable members of our society to the benefit of 
greedy insurance companies. It discriminates against children, against 
women, against older Americans, against ethnic minorities, against the 
poor. And for what, Mr. Speaker? History shows us the only winners 
emerging from H.R. 5 are the medical malpractice insurance carriers--
not the doctors, hospitals and patients our friends on the other side 
of the aisle purportedly seek to help.
  I urge you to vote against this ill-conceived and mean-spirited 
legislation.
  Ms. SCHAKOWSKY. Mr. Speaker, I rise in strong opposition to H.R. 5, 
the so-called HEALTH Act. The civil justice system is about giving 
injured consumers their day in court, allowing them the opportunity to 
hold wrongdoers accountable, recover damages and change dangerous 
behaviors. H.R. 5 is a frontal assault on those consumer rights.
  H.R. 5 is a dangerous, anti-consumer bill that would impose an 
arbitrary ceiling $250,000--on the amount a patient injured by medical 
malpractice, HMO denials, nursing home abuse or defective drugs or 
medical devices could receive for noneconomic damages, no matter how 
devastating the injury. In many cases, the victim may have few out-of 
pocket losses, but suffer great harm. For example, an l8-year old woman 
who loses her ability to have a child for the rest of her life may 
suffer no monetary loss. Under H.R. 5, the most she could recover in a 
medical malpractice lawsuit would be $250,000.
  Politicians should not impose arbitrary caps on non-economic damages. 
We are no substitute for a jury of one's peers, which has the ability 
to look at the facts and weigh the evidence in individual cases. There 
are some who say that it is appropriate to limit non-economic damages 
since economic damages are not capped. But non-economic damages are not 
``extras,'' they are not inconsequential. Unbearable and long-term 
pain, loss of sight and mobility, the inability to bear children, the 
loss of an infant or a grandparent--these may not be as easily 
quantifiable as lost wages but the losses are just as real. And, for 
many consumers who have been injured or lost a loved one, noneconomic 
damages might be the only damages available.
  The National Citizens' Coalition for Nursing Home Reform has provided 
actual histories of nursing home residents harmed by medical 
negligence. Frances G's physician described her as ``the victim of 
gross nursing home neglect. Her pressure sores and dehydration were 
inexcusable.'' Her nursing home was consistently understaffed, her 
physician's orders were repeatedly ignored, and she endured 
excruciating and continual pain from pressure sores but was given no 
pain medication. Gertrude H., according to charge nurses, was grossly 
neglected and suffered life-threatening pressure sores. Her physician 
stated that, ``I have no doubt that Gertrude experienced severe and 
unrelenting pain from June 27, 2000 to February 6, 2001, from the deep, 
eroding pressure sores.'' Because both Frances and Gertrude were senior 
citizens, any compensation would come in the form of non-economic 
damages. Do my colleagues really believe that $250,000 is 
``reasonable'' compensation for Frances and Gertrude and their 
families?
  Children are also adversely affected by caps on non-economic damages. 
Shannon Hughes had a long and difficult labor. The doctor was called 
repeatedly and finally showed up at her 35th hour of labor. At 37 
hours, the doctor performed an emergency C-section. The umbilical cord 
was twice wrapped around the child's neck. Tyler suffered cardiac 
arrest for 18 minutes. As a result, Tyler, who is now 7 years old, is 
severely brain-damaged and bedridden. He must be turned every two 
hours, is fed through a tube, suffers seizures daily and is non-
communicative. Shannon says, ``My son has no future but pain and 
suffering. No politician in Washington has the right to decide what is 
proper compensation for him.'' Like many parents, Shannon may need to 
use whatever noneconomic damages she received in order to pay for 
Tyler's care once her economic compensation runs out. In many 
instances, because of rising medical costs and new technologies, the 
damages awarded for medical care run out while the medical bills keep 
coming.
  Tyler survived, but many babies do not. Where medical malpractice 
results in the death of a child during labor, a mother most often will 
not have any physical injury but only emotional distress of losing her 
child. In this case, under the proposal by H.R. 5, no amount of 
economic damages will be awarded, and the non-economic damages would be 
capped at $250,000.
  Non-economic damage caps have a disproportionate effect on women who 
work inside the home, children, senior citizens, children and low wage-
earners who are more likely to receive a greater percentage of their 
compensation in the form of non-economic damages if they are injured. 
But caps on damages are not the only anti-consumer provisions in this 
legislation.
  In addition to the arbitrary ceiling on non-economic damages, H.R. 5 
lets wrongdoers--those found guilty of medical malpractice--decide 
whether to pay damages on a periodic basis, even if the injured 
consumer wants and needs damages paid upfront.
  H.R. 5 eliminates joint and several liability. This means that a 
consumer injured by more than one wrongdoer will not be fully 
compensated if one of those wrongdoers declares bankruptcy or cannot 
pay their share.
  H.R. 5 eliminates the collateral source rule, which could mean that 
an injured consumer's health insurer--not the wrongdoer--pays the 
medical bill.
  H.R. 5 also places limits on punitive damages, gives special 
protections for drug companies and medical device manufacturers, caps 
attorneys' fees for plaintiffs but not defendants, and shortens the 
statute of limitations. Finally, it includes a state preemption 
provision that leaves in place state laws more favorable to medical 
providers and organizations while overturning state laws more favorable 
to injured consumers.
  While it is clear what H.R. 5 would do in terms of eliminating 
consumers' rights, it is equally clear what it won't do. No insurance 
company executive has yet to come forward to say that passage of H.R. 5 
would reduce medical malpractice premiums. In fact, according to 
American Insurance Association spokesman Dennis Kelly, quoted in the 
January 3, 2005 Chicago Tribune, ``We have not promised price 
reductions with tort reform.'' The General Counsel for the American 
Tort Reform Association admitted that ``There is no question that it is 
very rare that frivolous suits are brought against doctors. They are 
too expensive to bring.'' (Los Angeles Times, 10/22/04).
  At the same time, multiple studies have indicated that medical 
malpractice premiums are not connected to jury award or settlement 
levels. A recent analysis of the top 15 medical malpractice insurers 
found no rise in payouts from 2000 to 2004, at the same time that 
premiums doubled. Some companies significantly increased premiums while 
their claims actually decreased. A study by the Economic Policy 
Institute found that the number of tort cases fell 4 percent from 1993 
to 2002 and that the real causes of higher premiums were economic 
factors and insurers' investment decisions.
  H.R. 5 takes away consumers' rights and particularly hurts women, 
children and seniors,

[[Page 18326]]

while doing nothing to help doctors with high malpractice insurance 
premiums. I urge my colleagues to vote ``no'' on H.R. 5.
  Mr. DAVIS of Illinois. Mr. Speaker, I rise today to express my 
opposition to H.R. 5, the HEALTH Act of 2005. I rise to oppose this 
legislation, not because I do not recognize the crisis that is brewing 
in the area of medical malpractice insurance, but because this 
legislation tries to remedy this crisis with the wrong prescription.
  Many of my distinguished colleagues on both sides of the aisle have 
expressed their concern regarding the access to healthcare that their 
constituents face. We all recognize this is a major problem in our 
country. In addition, physicians are constantly under increased 
pressure throughout the nation to deal with the increased burden that 
high malpractice premiums pose to their livelihood. In my home state of 
Illinois, only two neurosurgeons can be found south of Springfield 
because malpractice insurance rates are so out-of-control. Due to this 
shortage of neurosurgeons, patients with serious brain injuries are 
airlifted to St. Louis, many times costing them valuable minutes that 
can mean the difference between life and death. To remedy this 
situation as well as the overall problem of liability premium 
increases, my state imposed caps on non-economic damages to offer a 
quick fix to keep fleeing doctors. Currently, there are some 21 other 
states with similar caps.
  While caps give the appearance of remedying this crisis in some 
states, they do nothing to stem the tide of ``frivolous lawsuits.'' 
Frivolous lawsuits by definition are lawsuits without merit. According 
to the Physicians Insurers Association of America, the trade group 
representing physician-owned insurance companies, 70% of malpractice 
lawsuits are dismissed and only 0.8% of cases actually go through a 
trial and reach a verdict in favor of the plaintiff.
  Advocates of caps argue that this 0.8% is what drives up the cost of 
malpractice insurance. They argue that out-of-control jury awards drive 
up malpractice premiums. Are we to assume that this 0.8% of cases which 
go through fair trial, find in favor of the plaintiff, are in fact 
``frivolous''? I would argue that the 70% of cases which are dismissed 
are the ``frivolous cases,'' and this 0.8% represents many egregious 
cases of malpractice.
  Without addressing this problem, this bill does nothing to stop 
``frivolous lawsuits,'' it only limits the claims of a person who 
suffers a terrible and often extreme example of malpractice. Minor 
injuries or pain and suffering do not receive massive awards. I ask my 
colleagues, if you or one of your family members suffered a 
tremendously egregious example of malpractice, would you want to be 
limited in what you or your family member could be compensated? I am 
sure your response, much as mine is that you would not.
  My colleagues, we can debate over and over again on legislation such 
as this, but all the debate in the world will not lead to solving this 
problem when we are headed in a direction such as this. As many of my 
colleagues have pointed out, a recent study of the 15 largest 
malpractice insurers in the country found that insurers substantially 
increased their net premiums by an average of 120% while both their 
payments and projected future claims payments were flat or decreasing 
over the past few years. This directly contradicts the insurance 
industry's claims that premiums are increasing due to increased jury 
awards. Many of these same insurers even admit that capping malpractice 
awards will not reverse the trend of rising premiums. The malpractice 
insurance industry is unjustifiably raising their premiums, gouging 
doctors, and pushing for legislation that only does one thing: pits 
doctors against their patients.
  If Congress is really serious about fixing this problem it will 
develop a system which benefits patients most while sidelining the 
interests of big business. Physicians are in the business of caring for 
patients, and I appreciate the burden they face with increased 
malpractice premiums. I am fully aware that this burden affects their 
ability to practice the profession they love. I only hope that in this 
struggle to find a remedy to this problem, the few patients who are 
harmed as a result of malpractice will not be further harmed by a limit 
on a just compensation.
  Mr. LANGEVIN. Mr. Speaker, I rise today in strong opposition to H.R. 
5, the Help Efficient, Accessible, Low Cost, Timely Health Care 
(HEALTH) Act. It is irresponsible to limit patients' access to the 
civil justice system, particularly without any guaranteed decrease in 
the cost of malpractice insurance coverage. This measure contains no 
provision requiring insurers to lower their rates once these so-called 
reforms are in place. As a result, it would leave countless patients 
deprived of relief while failing completely to help our struggling 
health providers.
  Like many of my colleagues, I am deeply troubled by the rising cost 
of malpractice insurance. Doctors across the country are being 
adversely affected by an increase in medical liability insurance 
premiums. These increases are making it more costly for physicians to 
practice, and rising insurance rates could eventually mean that 
patients no longer will have easy access to medical care. Doctors 
completing residencies in expensive areas are seeking better rates 
elsewhere, and physicians already in the market are leaving. I 
recognize that this is becoming a national crisis.
  There is wide agreement that something must be done to ensure 
reasonable rates and protect access to health care. Unfortunately, the 
leadership has presented us with a partisan bill, identical to that 
which we voted on in two previous Congressional sessions. Nothing in 
this legislation would decrease premium costs or increase the 
availability of medical malpractice insurance. Instead, it would make 
detrimental changes to the health care liability system that would 
extend beyond malpractice and compromise the ability of patients and 
other health care consumers to hold pharmaceutical companies, HMO's and 
health care and medical products providers accountable.
  Once again, we are presented with a bill that the leadership claims 
will lower costs of medical liability insurance for doctors, but fails 
to address the rate-setting process followed by the insurance industry. 
Insurance companies benefit from a federal exemption to antitrust laws, 
which allows them to collectively raise premiums without fear of 
prosecution. A recent study of the annual statements of the 15 largest 
medical malpractice insurers found that insurers substantially 
increased their premiums while both their claims payments and projected 
future claims payments were decreasing. Other studies suggest that rate 
changes in premiums are closely tied to the fluctuations of the stock 
market--not the increases in claims from frivolous lawsuits.
  Perhaps most troubling to me is that nothing in this bill stipulates 
that savings earned as a result of the ``reforms'' must be passed along 
to doctors, through a lowering of their own insurance costs. In light 
of the lack of transparency requirements of the insurance industry, 
there is no mechanism to hold them accountable to actually lower costs. 
I believe this must be the crux of any meaningful reform measure.
  I recognize that the rapid increase in insurance premiums is having 
real effects on the health care industry. Not only does it drive up the 
cost of health care for consumers and doctors--it is having an impact 
on the medical professional workforce. Residents are being encouraged 
to enter lower-risk fields of practice and doctors are making decisions 
about their careers based the costs of insurance.
  The Democratic motion to recommit proposes to address these issues by 
allowing patients to seek redress and providing assistance to 
physicians and hospitals in need. Specifically, this alternative would 
end frivolous lawsuits by requiring affidavits to be filed by qualified 
specialists certifying that the case is meritorious. It would also 
establish an independent advisory commission to explore the impact of 
malpractice insurance rates, particularly in areas where health care 
providers are lacking. These are the steps that we must take in order 
to adequately address this problem.
  In addition to meaningful systemic reform, any responsible approach 
to the issues of medical malpractice insurance costs should include 
efforts to reduce medical errors in the first place. Reports show that 
there preventable medical errors that kill nearly 100,000 hospital 
patients a year. The utilization of electronic health records at our 
hospitals can go a long way in this effort. The Veteran's 
Administration (VA), which relies heavily on information technology, 
has been the first large health system in the nation to replace paper 
charts with this fully electronic record. Electronic medical records 
and the efficient use of technology can be a significant agent for 
change in health care quality across all settings, reducing not only 
inefficiencies, but the number of medical errors as well.
  Mr. Speaker, I urge my colleagues to oppose the underlying bill, 
support the Democratic alternative and commit to working together on 
reform measures that will result in significant change, benefiting 
doctors and consumers alike.
  Mr. SHUSTER. Mr. Speaker, I rise today to urge my colleagues to 
support H.R. 5, the HEALTH Act.
  This country's health care system and its providers are currently 
faced with a crisis in regard to medical liability coverage. 
Skyrocketing malpractice insurance premiums have taken an enormous toll 
on the physicians and hospitals in my district in Western and

[[Page 18327]]

Central Pennsylvania. I have encountered many situations all over the 
communities that make up the 9th district where doctors have moved to 
lower-liability states, have reduced the scope of their practices, or 
have chosen to retire in the face of this growing malpractice crisis. 
This must not be allowed to continue.
  I strongly disagree with those that would say there is no problem. 
Currently, only 4 percent of physicians practicing in Pennsylvania are 
under the age of 35 and students graduating from our medical schools 
are choosing not to stay and practice in State. As our older doctors 
retire or limit their practices there is no one to continue their 
important work. This real and increasing threat to patients' access to 
quality care cannot be ignored. The medical liability system in this 
country is in desperate need of reform.
  We must act now to reverse a dangerous litigious trend that is 
eliminating doctors faster than we can replace them. I urge my 
colleagues to support and vote in favor of H.R. 5.
  Mr. SALAZAR. Mr. Speaker, today, the House of Representatives will 
debate and vote on a proposal that supporters claim will solve the 
problem of increasingly unaffordable medical malpractice insurance 
premiums for our Nation's doctors. They argue that outrageous jury 
awards are to blame for rising healthcare costs.
  I am afraid this bill is not the end-all, save-all solution to our 
health care crisis; and, in fact, I fear it will do nothing to relieve 
the burden our doctors face. If we are serious about lowering the cost 
of medical malpractice insurance why aren't we addressing the issue of 
insurance reform or ways in which we can weed out bad doctors, or for 
that matter, trial lawyers who abuse the court system?
  This bill does little more than set a 1970's era cap on jury awards 
for medical malpractice cases, an action which will only hurt those who 
are already suffering--the patients and their loved ones.
  An analysis of State by State medical malpractice insurance premiums, 
obtained from the Medical Liability Monitor, compared with caps on 
damages reveals no conclusive evidence these caps work. In fact, 
according to one survey, insurance premiums in states with caps were on 
average $4170 higher than those in States without caps.
  This bill goes much further than simply addressing the medical 
malpractice insurance dilemma; it even sets caps on damages for nursing 
home neglect, unsafe prescription drugs, and a variety of other health-
related industries. In 2004, Congress and others raised questions about 
the safety and effectiveness of several FDA-approved biomedical 
products on the market, including certain antidepres-
sants, Merck's pain relief drug, Vioxx, Boston Scientific's cardiac 
stents, and other drugs and medical devices. Evidence has suggested 
that there were problems with these items during clinical trials.
  Does this Congress really want to protect companies who knowingly put 
dangerous products on the market? I know I don't.
  H.R. 5 does not go nearly far enough to address the climbing medical 
malpractice insurance rates or the healthcare crisis our constituents 
are trying to negotiate. I again pose the questions, why doesn't this 
bill address the insurance industry; why aren't we trying to weed out 
bad doctors; or punish trial lawyers who abuse the system?
  We need something more than caps on jury awards to lower the cost of 
health care in this country.
  Mr. CARDIN. Mr. Speaker, I rise in opposition to this bill. I support 
reform of our nation's medical liability system. I also believe that 
doctors and medical institutions who are experiencing unsustainable 
increases in their malpractice premiums deserve relief. Before coming 
to Congress, as Speaker of the Maryland House of Delegates, I worked to 
craft legislation that brought significant changes at the state level, 
including reasonable caps on non-economic damages. It worked well to 
hold down the cost of premiums and make our State's malpractice system 
a much fairer one.
  The problems in our Nation's medical liability system require a 
multi-faceted approach that includes addressing the causes of premium 
increases, reducing the number of frivolous lawsuits, and limiting the 
number of medical errors. I support enacting fair reforms that will 
continue to permit injured patients to hold wrongdoers accountable, and 
I am willing to support legislation that provides for reasonable caps 
on non-economic and punitive damages.
  In recent years, I have seen so-called malpractice ``reform'' bills 
come to the floor of this House. Those bills provided an inequitable 
approach--limiting patients' access to the courts and imposing strict 
limits on compensation for their injuries, no matter how serious the 
injury or how egregious the malpractice, while doing nothing to lower 
malpractice premiums. Fortunately, they were not enacted into law.
  I had hoped that this year's legislation would be the product of 
careful deliberation at the committee level. I had hoped that the 
authors would take into consideration the rights of patients and 
balance them carefully with the need to alleviate the burden of 
escalating malpractice insurance costs. Unfortunately, once again this 
year, the bill before us does neither. In fact, the leadership has 
simply rolled out a bill that is nearly identical to the one we 
considered in the last Congress. There were no hearings, no markups, 
and today, there are no opportunities to amend the bill. The same bill, 
the same bill number, the same disregard for the rights of patients, 
the same ineffectual approach to helping physicians.
  Mr. Speaker, I want to call attention to a few aspects of this bill. 
First, this bill contains an arbitrary cap of $250,000 on non-economic 
damages. Non-economic awards compensate patients and their families for 
real injuries, and sharply capping them will disproportionately hurt 
families, children, seniors, and others who have lower or fixed 
incomes.
  Second, H.R. 5 provides a shield against punitive damages for 
manufacturers of prescription drugs and medical devices as long as they 
have been approved by the U.S. Food and Drug Administration. At one 
time, the FDA shield might have been less controversial. After all, the 
FDA has long been considered the gold standard for prescription drug 
quality and safety, and for years its seal of approval was viewed by 
the American public as a guarantee that drugs were safe. But in light 
of developments related to several other pharmaceuticals approved by 
the FDA, this provision is truly baffling. Cases involving life-
threatening complications from these drugs have raised fundamental 
questions about the safety determinations made by the FDA.
  In 2004, the Energy and Commerce Committee held hearings to examine 
safety Issues surrounding the prescribing of antidepressants to 
children. At that time, several members of the Committee criticized the 
FDA for failing to take prompt action to address these concerns. Last 
September, Vioxx was withdrawn from the market after a study showed it 
doubled the risk of heart attacks and strokes in patients taking the 
drug for more than 18 months. Since then, it has been reported that 
more than 130,000 persons have suffered heart attacks as a result of 
taking Vioxx. Richard Matthews of Thurmont, Maryland, was one of the 
first reported fatalities from Vioxx. According to an Associated Press 
account, Richard's wife, Lisa, said her husband had no previous heart 
problems and died in 2002 at age 42 of a heart arrhythmia only a few 
days after he began taking Vioxx. Several Congressional committees have 
responded to these events by initiating investigations of drug safety 
issues, including the FDA's procedures for evaluating the safety of 
prescription drugs.
  Given the questions that have arisen about FDA's effectiveness, it is 
truly astonishing that the leadership is here promoting a bill that 
prohibits the awarding of any punitive damages and limits non-economic 
damages for drugs and devices approved by the FDA. This bill, H.R. 5, 
was referred to the Energy and Commerce Committee, the same committee 
that acknowledged problems at the FDA. Did the committee's members try 
to amend this bill to strike or tone down the FDA provision? There was 
no opportunity. H.R. 5 was introduced one week ago, July 21, referred 
to the Judiciary and Energy and Commerce Committees, which did not hold 
a hearing or mark-up, and then brought to the floor today. The FDA 
shield is an irresponsible provision that should have been stricken 
from this bill. We have no opportunity to strike it today, because an 
amendment that would have done so was not made in order by the Rules 
Committee. It may endanger the health and lives of thousands of 
Americans. It will certainly deny them the opportunity to receive fair 
compensation when they are injured.
  Third, I firmly believe that we must reduce medical errors in our 
health care system if we are to reduce the number of malpractice cases. 
It has been nearly six years since the 1999 report of the Institute of 
Medicine, IOM, entitled ``To Err Is Human: Building A Safer Health 
System.'' That report focused a great deal of attention on the issue of 
medical errors and patient safety. IOM estimated that between 44,000 
and 98,000 people die in hospitals each year as the result of medical 
errors.
  Even using the lower estimate, this would make medical errors the 
eighth leading cause of death in this country, higher than motor 
vehicle accidents, breast cancer, or AIDS. This House has just passed 
S. 544, legislation intended to reduce medical errors and improve 
patient safety. But its passage by a nearly unanimous vote of 428 to 3 
is a clear indication that Congress knows there are valid

[[Page 18328]]

cases whose victims deserve their day in court. The patient safety bill 
has not yet been signed into law. I hope it will be law soon, and that 
it will help improve patient safety. But each case is an individual 
case, and those who are harmed by medical errors deserve just 
compensation for their injuries.
  Finally, I must question why the authors of this bill are not 
addressing malpractice insurance premium increases in this bill. The 
provisions of H.R. 5 would not reduce the rates that insurance 
companies charge providers. We have an alternative that would directly 
address the problems of frivolous lawsuits and insurance industry 
abuses. But once again this year, the base bill, H.R. 5, contains no 
provisions that will lower malpractice premiums.
  Mr. Speaker, I must tell you, malpractice premium costs are the 
reason that providers ask me to support medical malpractice reform. 
These are practitioners who truly love their professions, and they are 
troubled by dramatic increases in their malpractice rates, increases 
that they must pay whether or not there have been any malpractice 
claims filed against them in the past year. They say that they want to 
continue practicing medicine next year, but they may not be able to 
afford to. When I ask if they would like to see provisions in the bill 
that limit their premium increases, they emphatically reply yes. So it 
is puzzling that this bill, which the authors say was written to help 
physicians stay in business, fails to address their central concern by 
even monitoring insurance companies' rate hikes. In fact, there are no 
provisions anywhere in the bill that affect malpractice insurers.
  In sum, H.R. 5 represents a missed opportunity for this House. We 
could have produced a bill that would truly make a difference, in 
lowering malpractice premiums, in placing reasonable caps on non-
economic damages. I am disappointed that we don't have a better bill, a 
more responsible bill that we can vote on today. I urge my colleagues 
to reject this approach, which will do nothing to improve access to 
care, nothing to hold insurance companies accountable for premium 
increases, and nothing to make our nation's medical liability system 
more fair.
  Ms. McCOLLUM of Minnesota. Mr. Speaker, I rise in opposition to H.R. 
5, the Republican Medical Malpractice legislation. This flawed bill 
provides sweeping liability protections to pharmaceutical and insurance 
companies, provides inadequate protections for doctors, and will do 
nothing to lower health care costs.
  Doctors are rightly frustrated over the significant increases in 
medical liability insurance premiums and I am truly concerned that 
additional costs make it more difficult for physicians to stay in 
practice. However, I do not believe that this legislation addresses the 
real problem, which lies with the insurance companies.
  Republicans have for years claimed that the rising costs of 
malpractice insurance are due to a dramatic increase in malpractice 
lawsuits. However, a recent study of the 15 largest insurance companies 
shows that over the past 5 years, premiums have doubled while claims 
payments have been reduced or remained static. This study proves that 
insurance companies are simply increasing their profits on the backs of 
our physicians.
  Another totally outrageous provision of this bill is the sweeping 
liability protection for pharmaceutical companies. This bill states 
that if a product has gone through the Food and Drug Administration 
approval process, no punitive damages can be awarded against the 
manufacture of the device or drug later. If this were to become law, 
the manufacturers of Vioxx would be protected from lawsuits from the 
families of those harmed or killed by this faulty medication. It is 
unacceptable to put into law that pharmaceutical and insurance 
companies are without accountability when their products or decisions 
knowingly cause harm.
  This Republican bill will hurt patients who are harmed by medical 
malpractice by arbitrarily capping damages and denying justice to 
injured patients and their families. This is not only unfair, it is 
unnecessary. New information shows that there is no link between the 
existence of malpractice caps and insurance premiums.
  Finally, because medical malpractice accounts for less than one 
percent of national health care costs, this legislation will do nothing 
to reduce health care premiums. Families across America are struggling 
to afford quality health care and the numbers of uninsured are on the 
rise. We need to address the real issues involved in the dramatic 
increase in health care costs, such as the cost of prescription drugs, 
provider shortages, uninsur-
ance, and the cost of new technologies.
  This Congress must become serious about increasing access to quality 
health care. We need to put families, not pharmaceutical companies, 
first. I support the Democratic substitute which would have weeded out 
frivolous lawsuits but allowed justice for injured patients. Democrats 
were ready to take steps to really reduce insurance premiums by 
requiring insurance companies to give half of their savings to 
reductions in medical malpractice rates for doctors. Finally, this 
substitute would create a commission to evaluate the real causes of 
increases in premiums as well as insurance reform proposals. We all 
recognize that this is an important issue. This substitute will give us 
an opportunity to work together, with accurate information, to make 
real progress for patients and providers.
  Ms. KILPATRICK of Michigan. Mr. Speaker, I rise today in opposition 
to H.R. 5, Help Efficient, Accessible, Low-Cost, Timely Health-
care (HEALTH) Act. This bill would hurt patients who are harmed by 
medical malpractice by arbitrarily capping damages, denying justice to 
injured patients and their families.
  This bill makes a number of changes to current law affecting medical 
malpractice lawsuits filed in Federal and State court, including 
limiting the amount of non-economic and punitive damages that could be 
awarded to a plaintiff, and restricting the contingency fees that can 
be charged by attorneys. The bill also pre-empts State laws that 
conflict with the enforcement of any of its provisions. The measure 
does not, however, pre-empt any State statutory limits on the amount of 
compensatory, punitive or total damages awarded in health care 
lawsuits. The provisions of the measure dealing with caps on awards 
would apply only to those States that have no statutory limits on 
damage awards in health care lawsuits.
  The bill seriously restricts the rights of injured patients to be 
compensated for their injuries, while rewarding insurance companies for 
bad investment decisions and doctors for practicing bad medicine. In 
the 13th District of Michigan and in many districts across the country, 
physicians have either retired prematurely or relocated their 
practices. The supporters of this bill claim their proposal would 
reduce insurance costs for doctors. This bill does not lower premiums 
for doctors, contains no insurance reforms, and would not address the 
rising cost of health care.
  Mr. Speaker, I urge all of my colleagues to support the Democratic 
substitute, which would directly address rising premiums by reforming 
malpractice insurance and stopping frivolous lawsuits. The Democratic 
substitute does not restrict the rights of injured patients who file 
meritorious claims. It requires certification, with civil penalties, 
that a pleading is not frivolous, factually inaccurate or designed to 
harass. It includes a 3-year statute of limitation; establishes an 
alternative dispute resolution process; limits suits for punitive 
damages; and applies 50 percent of awards from any punitive damages to 
a patient safety fund at HHS. Finally, it requires insurance companies 
to develop a plan to give 50 percent of their savings to reductions in 
medical malpractice rates for doctors.
  It is unfortunate the Democratic Substitute was not adopted. H.R. 5 
in its present form does not address rising premiums and denies justice 
to injured patients and their families.
  Vote against H.R. 5.
  Ms. CORRINE BROWN of Florida. Mr. Speaker, we need a fix for our 
healthcare system, but H.R. 5 is not it. Limiting patient's legal 
redress and compensation is not it. The punishment should fit the crime 
and if a doctor or drug company does harm knowingly or negligently to a 
patient they should be compensated to make them whole. That is the 
standard and it should be decided on a case by case basis according to 
the facts of each case. It makes me very uncomfortable to place a cap 
and effectively a dollar amount on what an impact an injury has on an 
individual's life.
  The main group that benefits are big drug companies who will be able 
to evade their responsibilities injured parties.
  The bill will seriously restrict the rights of injured patients to be 
compensated for their injuries, while rewarding insurance companies for 
bad investment decisions and doctors for practicing bad medicine. It 
will do almost nothing to make insurance more affordable or available 
for doctors. That is the bottom line. In a State like Florida where 
topic of healthcare is on the tip of every tongue it is important that 
we take the right steps to solve our mounting healthcare costs.
  I am sensitive to the physicians and medical students who plead with 
me to make it affordable to practice. I know that physicians are now 
being forced to make specialty choices based on how much malpractice 
insurance costs, but let's be honest to our colleagues if not these 
poor students, the Republican leadership has trotted this bill out for 
purely political purposes--no hearings were held on the measure, nor 
did either committee with jurisdiction mark up the bill. This bill was 
only introduced last week.

[[Page 18329]]

  If H.R. 5 becomes law, this bill would have serious consequences for 
sick and injured patients. The measure's $250,000 cap on non-economic 
damages will hurt those at the bottom of the income scale the most. 
While corporate chief executive officers would receive economic damage 
awards that could easily reach into the millions of dollars, minimum-
wage workers and stay-at-home moms would receive a pittance. The cap on 
punitive damages is similarly unjust. It imposes an impossibly high 
standard of proof, completely eviscerates the deterrent that effect 
punitive damages have on egregious misconduct of defendants, and would 
not affect how large drug companies test and market their products.
  When investment income decreased because of stock market declines, 
insurance companies hiked premiums, reduced coverage and then blamed 
the legal system for a ``liability insurance crisis.'' This bill also 
contorts the American legal system, first by taking the issue of tort 
litigation out of the hands of the states, where it has traditionally 
resided, and by severely limiting juries' abilities to adequately 
compensate victims of malpractice. We place our trust in juries every 
day to judge the facts and to decide what constitutes justice. If we 
can trust juries to make life and death decisions on death-penalty 
cases, we can surely trust them to decide the appropriate level of 
compensation for those injured by medical malpractice.
  Our current tort system is the great equalizer in the civil justice 
system--it allows ordinary citizens to take on billion-dollar companies 
and millionaire doctors defended by $500-an-hour lawyers so they can 
get the compensation they deserve. The contingency fee system also 
deters frivolous lawsuits--no lawyer would agree to take on a case he 
believed would result in no award for his client and no payment for 
himself.
  Tort reformers often ridicule million-dollar jury awards, saying that 
the plaintiffs must feel like they have won the lottery. Tell that to 
the parents of the 17-year-old transplant patient who died after being 
given organs with the wrong blood type, or the Wisconsin woman who had 
a double mastectomy, only to discover after the operation that the lab 
had made a mistake and she did not have breast cancer after all. It is 
doubtful that any family that loses a loved one or suffers years of 
pain and suffering because of a medical error feels like celebrating 
after fighting their way through the court system and finally receiving 
compensation.
  The Institute of Medicine estimated in 1999 that as many as 98,000 
people are killed by medical errors every year--that is as many people 
as live in the president's old hometown of Midland, Texas. Instead of 
penalizing innocent victims of medical malpractice, Congress should be 
focusing on reducing the number of mistakes made. According to data 
from the National practitioner Database, 5 percent of all doctors are 
responsible for 54 percent of malpractice claims paid. The medical 
profession needs to crack down on these repeat offenders. It is 
disgraceful that the House leadership is using this bill as filler 
round out its ``health care'' theme for next week's floor schedule. 
Medical malpractice insurance rates and medical errors are important 
issues that reserve the full attention of Congress. These issues need 
to be studied by Congress in a bipartisan manner to address both 
problems and should not be used as political fundraising tools.
  Mr. SMITH of Texas. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Shaw). Pursuant to House Resolution 385, 
the bill is considered read 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. I am, Mr. Speaker.
  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. 5 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 amendment:

       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 2005''.
       (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. Reduction in premiums paid by physicians for medical 
              malpractice insurance coverage.
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,

[[Page 18330]]

     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 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 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. REDUCTION IN PREMIUMS PAID BY PHYSICIANS FOR 
                   MEDICAL MALPRACTICE INSURANCE COVERAGE.

       (a) In General.--Not later than 180 days after the date of 
     the enactment of this Act, each medical malpractice liability 
     insurance company shall--
       (1) develop a reasonable estimate of the annual amount of 
     financial savings that will be achieved by the company as a 
     result of this title;
       (2) develop and implement a plan to annually dedicate at 
     least 50 percent of such annual savings to reduce the amount 
     of premiums that the company charges physicians for medical 
     malpractice liability coverage; and
       (3) submit to the Secretary of Health and Human Services 
     (hereinafter referred to in this section as the 
     ``Secretary'') a written certification that the company has 
     complied with paragraphs (1) and (2).
       (b) Reports.--Not later than one year after the date of the 
     enactment of this Act and annually thereafter, each medical 
     malpractice liability insurance company shall submit to the 
     Secretary a report that identifies the percentage by which 
     the company has reduced medical malpractice coverage premiums 
     relative to the date of the enactment of this Act.
       (c) Enforcement.--A medical malpractice liability insurance 
     company that violates a provision of this section is liable 
     to the United States for a civil penalty in an amount 
     assessed by the Secretary, not to exceed $11,000 for each 
     such violation. The provisions of paragraphs (3) through (5) 
     of section 303(g) of the Federal Food, Drug, and Cosmetic Act 
     apply to such a civil penalty to the same extent and in the 
     same manner as such paragraphs apply to a civil penalty under 
     such section.
       (d) Definition.--For purposes of this section, the term 
     ``medical malpractice liability insurance company'' means an 
     entity in the business of providing an insurance policy

[[Page 18331]]

     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:
       (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.--The Commission shall evaluate the causes 
     and scope of the recent and dramatic increases in medical 
     malpractice insurance premiums and formulate additional 
     proposals to reduce such medical malpractice premiums and 
     make recommendations to avoid any dramatic increases in 
     medical malpractice premiums in the future, in light of 
     proposals for tort reform regarding medical malpractice.
       (b) Considerations.--In formulating proposals under this 
     section, 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, including proposals for 
     addressing the current dramatic increases in medical 
     malpractice insurance rates and recommendations for avoiding 
     any such dramatic increases in the future.
       (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

[[Page 18332]]

     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 (without regard to the provisions of title 5, United 
     States Code, governing appointments in the competitive 
     service);
       (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 
     (without regard to section 3709 of the Revised Statutes (41 
     U.S.C. 5));
       (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.
       (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 2006 through 2010.
       (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 to recommit 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.
  Mr. CONYERS. Mr. Speaker, I am pleased to bring a motion to recommit 
that goes to the heart of the medical malpractice crisis. Rather than 
limiting the rights of legitimate malpractice victims, as the 
underlying bill actually does, our motion would directly address the 
problem of frivolous lawsuits and insurance industry abuses.
  Title I of the substitute addresses the problem of frivolous 
lawsuits. Among other things, it would require that both an attorney 
and health care specialist submit an affidavit that the claim is 
warranted before a malpractice action can be brought, and imposes 
strict sanctions for attorneys who make any frivolous pleadings.
  Unlike the majority's bill, our amendment is limited to licensed 
physicians and health care professionals for malpractice cases only. It 
does not include lawsuits against HMOs, insurance companies, nursing 
homes, and drug and device manufacturers. And it sure does not insulate 
the manufacturer of Vioxx from liability.
  Title II establishes a national commission to evaluate the rising 
insurance premiums and to review whether the McCarran-Ferguson 
antitrust exemption for medical malpractice insurers should be 
repealed.
  This is a good motion.
  Mr. Speaker, I yield the balance of my time, the last 2\1/2\ minutes, 
to the gentlewoman from Colorado (Ms. DeGette).
  Ms. DeGETTE. Mr. Speaker, Congress is faced with an irony today. We 
have identified a problem, and the problem is that doctors are going 
out of business because of their high medical malpractice insurance 
premiums. So what are we going to do? We are going to pass a bill that 
caps damages for victims injured by medical malpractice, but we are 
going to do nothing to reduce the premiums for these doctors.

                              {time}  1600

  So doctors get no relief, and victims of malpractice get less. But 
wait, there is more. There is so much more to this bill. We have not 
heard one word today about the pressing problems the pharmaceutical 
industry has and how we need to give them immunity so they will keep 
making drugs. But yet that is what this bill does.
  We have not heard one word today about how all of the nursing homes 
are going out of business because of the lawsuits against them, but we 
are giving them immunity today.
  We have not heard a thing about the medical device manufacturers and 
how they will not make the titanium hip replacements or the insulin 
pumps, but yet we are giving them immunity today.
  This bill goes further than any State law. It goes further than any 
law anybody would contemplate, and it is just a giveaway to the 
insurance industry, to the pharmaceutical industry, to the nursing home 
industry, and to the medical device manufacturers.
  If we pass the Conyers-Dingell motion to recommit, we will send this 
bill back and we will do something that will really give relief to the 
doctors who face these high malpractice insurance premiums.
  I urge a ``yes'' vote on the motion to recommit. If that fails, I 
urge a ``no'' vote on the underlying bill.
  Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time.
  This motion to recommit sets up a limitation on malpractice cases 
being brought. It requires that there be an attorney and health care 
specialist to submit an affidavit that the claim is warranted; and then 
in the second part, we establish a national commission to

[[Page 18333]]

evaluate the causes of rising health insurance premiums.
  This motion to recommit protects legitimate victims, limits frivolous 
lawsuits, and gives us a much-needed opportunity to examine the real 
causes of the medical malpractice insurance crisis that has this Nation 
in its grip.
  I urge my colleagues to support the motion to recommit so that we can 
deal with medical malpractice insurance as a crisis and not as a 
giveaway to the companies that have been named throughout this debate.
  Mr. Speaker, I yield back the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I rise to claim the time in 
opposition to the motion to recommit.
  The SPEAKER pro tempore (Mr. Shaw). Is the gentleman opposed to the 
motion?
  Mr. SMITH of Texas. Yes, Mr. Speaker.
  The SPEAKER pro tempore. The gentleman from Texas (Mr. Smith) is 
recognized for 5 minutes.
  Mr. SMITH of Texas. Mr. Speaker, the motion to recommit must be 
defeated because it contains zero legal protections for doctors beyond 
current law, and in some cases it actually makes the current crisis 
even worse.
  The Democratic alternative would require that before a health care 
lawsuit is filed, the claimant file an affidavit declaring that a 
qualified specialist has been consulted and has issued a written report 
that says the filing is meritorious.
  Mr. Speaker, the definition is so broad it is meaningless. The 
Democratic alternative also imposes another wasteful layer of 
bureaucracy on the health care system, mandatory mediation, which 
simply has no binding effect.
  The motion to recommit even makes the situation of OB/GYNs worse than 
it is today by allowing someone as old as 21 to file a lawsuit claiming 
the doctor who delivered them caused their injury 21 years before. The 
motion to recommit would subject OB/GYNs to even more nuisance suits 
and drive even more of them out of business.
  So the Conyers-Dingell substitute contains zero legal reforms and 
would make the current litigation crisis even worse; yet legal reforms 
are needed to solve the current crisis in medical liability insurance 
and increase access to health care.
  H.R. 5 is the only proven legislative solution. According to the 
Congressional Budget Office under the HEALTH Act, ``premiums for 
medical malpractice insurance ultimately would be an average of 25 to 
30 percent below what they would be under current law.''
  Mr. Speaker, for the sake of health care providers and the people who 
need them, let us keep doctors practicing their profession and defeat 
this motion to recommit.
  Mr. Speaker, I yield the balance of my time to the gentleman from 
Wisconsin (Mr. Green), who is an expert on this subject.
  Mr. GREEN of Wisconsin. Mr. Speaker, it all boils down to this: we 
cannot get a handle on health care costs unless we first get a handle 
on the least productive part of heath care costs. Excessive liability 
costs are unproductive. They do not increase the quality of care. They 
do not increase accessibility to care, and they certainly do not 
increase affordability of care.
  Here is what excessive liability costs do. They drive up insurance 
costs for doctors. They drive physicians out of high-risk specialties 
and fields, and they drive them out of high-cost areas. In some cases, 
they drive them out of practice altogether; and in those cases we all 
lose.
  The great thing about the bill before us is we know it will work. It 
is not speculative. We know it works. We know that reforms which permit 
injured parties to recover every last dollar of economic damages, but 
place a modest cap on noneconomic damages, loss of society, loss of 
companionship, we know these reforms can help solve the medical 
liability crisis. It worked in California. It once worked in Wisconsin. 
And it can work all across America if we pass the HEALTH Act. If we 
defeat this motion to recommit, we can solve the medical liability 
crisis. This is what we must do.
  Mr. SMITH of Texas. Mr. Speaker, I urge my colleagues to vote ``no'' 
on the motion to recommit and ``yes'' on the HEALTH Act.
  The SPEAKER pro tempore (Mr. Sweeney). 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, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair 
will reduce to 5 minutes the minimum time for any electronic vote on 
the question of passage.
  The vote was taken by electronic device, and there were--yeas 193, 
nays 234, answered ``present'' 1, not voting 5, as follows:

                             [Roll No. 448]

                               YEAS--193

     Abercrombie
     Ackerman
     Allen
     Baca
     Baird
     Baldwin
     Barrow
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boren
     Boswell
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Carnahan
     Case
     Chandler
     Clay
     Cleaver
     Clyburn
     Conyers
     Cooper
     Costa
     Costello
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     Davis (TN)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Doyle
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Ford
     Frank (MA)
     Gonzalez
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Herseth
     Higgins
     Hinchey
     Hinojosa
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick (MI)
     Kind
     Kucinich
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren, Zoe
     Lowey
     Lynch
     Maloney
     Markey
     Marshall
     Matsui
     McCarthy
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Melancon
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schiff
     Schwartz (PA)
     Scott (GA)
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tanner
     Tauscher
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                               NAYS--234

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boustany
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Chocola
     Coble
     Cole (OK)
     Conaway
     Cox
     Cramer
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis (KY)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Ehlers
     Emerson
     English (PA)
     Everett
     Feeney
     Ferguson
     Fitzpatrick (PA)
     Flake
     Foley
     Forbes
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Gordon
     Granger
     Graves
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Holden
     Hostettler
     Hulshof
     Hunter
     Hyde
     Inglis (SC)
     Issa
     Istook
     Jenkins
     Jindal

[[Page 18334]]


     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Keller
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     Kuhl (NY)
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     Matheson
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Mollohan
     Moran (KS)
     Murphy
     Murtha
     Musgrave
     Myrick
     Neugebauer
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Otter
     Oxley
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Pombo
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schwarz (MI)
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (NJ)
     Smith (TX)
     Sodrel
     Souder
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                        ANSWERED ``PRESENT''--1

       
     Sensenbrenner
       

                             NOT VOTING--5

     Andrews
     Carson
     Kelly
     Paul
     Schakowsky

                              {time}  1631

  Mr. McHUGH, Mr. ISSA, Mrs. DRAKE, Mr. GORDON, Mrs. MUSGRAVE, and Mr. 
HOBSON changed their vote from ``yea'' to ``nay.''
  Messrs. HINCHEY, FARR, SMITH of Washington, and SPRATT changed their 
vote from ``nay'' to ``yea.
  So the motion to recommit was rejected.
  The result of the vote was announced as above recorded.
  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. CONYERS. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 230, 
noes 194, answered ``present'' 2, not voting 7, as follows:

                             [Roll No. 449]

                               AYES--230

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boren
     Boustany
     Boyd
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Buyer
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Cardoza
     Carter
     Castle
     Chabot
     Chocola
     Cole (OK)
     Conaway
     Cox
     Cramer
     Crenshaw
     Cubin
     Cuellar
     Culberson
     Cunningham
     Davis (KY)
     Davis (TN)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     Dent
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Ehlers
     Emerson
     English (PA)
     Everett
     Feeney
     Ferguson
     Fitzpatrick (PA)
     Foley
     Forbes
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Gordon
     Granger
     Graves
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Holden
     Hostettler
     Hulshof
     Hunter
     Hyde
     Inglis (SC)
     Issa
     Jindal
     Johnson (CT)
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     Kuhl (NY)
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     Matheson
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Murtha
     Musgrave
     Myrick
     Neugebauer
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Otter
     Oxley
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Pombo
     Pomeroy
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schwarz (MI)
     Scott (GA)
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (NJ)
     Smith (TX)
     Sodrel
     Souder
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NOES--194

     Abercrombie
     Ackerman
     Allen
     Baca
     Baird
     Baldwin
     Barrow
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boswell
     Boucher
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Carnahan
     Case
     Chandler
     Clay
     Cleaver
     Clyburn
     Coble
     Conyers
     Cooper
     Costa
     Costello
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Diaz-Balart, L.
     Dicks
     Dingell
     Doggett
     Doyle
     Duncan
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Flake
     Ford
     Frank (MA)
     Gonzalez
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Herseth
     Higgins
     Hinchey
     Hinojosa
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Istook
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Jenkins
     Johnson (IL)
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick (MI)
     Kind
     King (NY)
     Kucinich
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren, Zoe
     Lowey
     Lynch
     Maloney
     Markey
     Marshall
     Matsui
     McCarthy
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Melancon
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Price (NC)
     Rahall
     Rangel
     Reyes
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schiff
     Schwartz (PA)
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tanner
     Tauscher
     Terry
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wynn

                        ANSWERED ``PRESENT''--2

     Burton (IN)
     Sensenbrenner
       

                             NOT VOTING--7

     Andrews
     Burgess
     Carson
     Johnson, Sam
     Paul
     Schakowsky
     Wu


                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}  1640

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

                          ____________________