[Congressional Record (Bound Edition), Volume 152 (2006), Part 5]
[Senate]
[Pages 7100-7102]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        MEDICAL LIABILITY CRISIS

  Mr. BURR. Mr. President, some in this institution suggest that there 
is no liability crisis in health care in America. I am here today to 
say that I don't think anyone in America believes that. They may 
believe it in this institution. As a Senator from North Carolina, I can 
state no one from North Carolina believes it.
  Not only has the out-of-control litigation in health care over the 
last decade inflated the cost for every American, it has now begun to 
affect the access we have to health care services.
  Doctors across the State in North Carolina report they have been 
forced to reduce the coverage of critical medical services, especially 
in obstetrics, neurosurgery, orthopedics, plastic surgery, and primary 
care because of the sharp increase in the cost of medical malpractice 
insurance coverage. It has gotten so high they cannot afford the 
coverage.
  Hospitals are concerned about the potential reduction in their 
services to their communities in the future as a result of the current 
crisis in medical liability insurance where premium increases and 
declining reimbursements continue. Hospitals report that the insurance 
crisis is making it increasingly more difficult for their medical staff 
to obtain adequate insurance coverage, and more importantly, at 
affordable prices.
  The crisis is real. We can no longer in this institution act like an 
ostrich, put our head in a hole in the ground, and believe because we 
cannot see it, it does not exist.
  Some nursing homes in North Carolina this year have no choice but to 
operate without liability insurance in order to stay open. The oldest 
and the frail in this country would not have the facilities to live in 
but for the brave decision of some owners that forego the insurance 
they can't afford.
  Other long-term care facilities, faced with the huge increase in 
premiums, have been forced to reduce staff hours, freeze wages and 
reduce residents' activities. Those are things we do not want to see 
happen to that population.
  North Carolina faces a medical liability insurance crisis. I had a 
friend who graduated from Wake Forest with me and was lucky enough to 
go to medical school. Today he is a nephrologist. I don't even know 
what a nephrologist is. I am not sure that too many people in America 
know what a nephrologist is. But I can tell you that he tells me 
nephrologists rarely get sued. In the last 3 years, his liability 
insurance has increased 300 percent. He has had a 300-percent increase 
in his cost to continue to practice medicine in a specialty that rarely 
sees lawsuits.
  North Carolina hospitals have experienced medical liability insurance 
premiums increasing from 400 to 500 percent for the past 3 years, with 
small rural hospitals experiencing the greatest increases.
  According to two recent studies, North Carolina's nursing homes are 
experiencing a tremendous increase in their medical liability premiums. 
Premiums for some nursing homes in North Carolina have skyrocketed by 
as much as 1,800 percent since 1995. But some in this institution 
suggest there is not a liability crisis in health care in America.
  The U.S. Department of Health and Human Services has concluded that 
the leading cause of the national liability insurance crisis is the 
recent explosion in multimillion dollar litigation awards and the 
resulting instability this creates in the medical liability insurance 
market.
  The U.S. Department of Health and Human Services cited that North 
Carolina is tied with Nevada for the most mega malpractice awards in 
recent years. But some in this institution suggest that there is not a 
medical liability crisis in America.
  Not only is it a crisis, health care services are out of the realm of 
the average American. It is driving doctors out of the profession of 
delivering medical services. In medical schools across the country this 
year, just as last year and the year before, many students will make a 
decision as to the specialties they choose for their entire medical 
profession based upon the likelihood of being sued in a court versus

[[Page 7101]]

where their interests and their love might exist in health care. But 
some suggest there is not a liability crisis in America.
  In North Carolina today we have a shortage of OB/GYNs, we have a 
shortage of neurosurgeons, we have a shortage of thoracic surgeons. 
When you look at the demographic shift that is happening in America, 
the Census Bureau projects that in North Carolina alone we will have a 
53-percent increase in the State's population over the next 20 years. 
We will be the seventh most populated State. The OB/GYNs better move 
there because without OB/GYNs we are not going to deliver new babies. 
If they move there for retirement, which is probably our largest growth 
area, they may find out that they are moving to a State that has a 
tremendous health care infrastructure but the state does not have the 
specialists in neurology, in neurosurgery, and thoracic surgery 
available for their age group, and then they will have not made the 
wisest decision. But some suggest there is no crisis.
  Lawsuits today are the leading cause of liability insurance 
increases. Changes are needed to protect patient access to health care. 
States that have enacted comprehensive common sense liability reforms 
have experienced much lower increases in medical liability insurance 
premiums compared to States such as North Carolina and Nevada because 
we have yet to adopt such reforms.
  It is imperative this institution accept the national responsibility 
to end this crisis in health care, to make sure that the next students 
in our medical schools make decisions based upon where they want to 
practice and who, in fact, they want to help and not based upon where 
their fear exists of where the trial bar is most likely to target for 
the next lawsuit.
  Over the years, I have heard from a lot of folks in North Carolina. I 
received this letter from a doctor in Greensboro, NC, in the month of 
April. It says:

       As an orthopaedic trauma surgeon, I urge you to pass 
     medical liability reform this year. Each year, reform 
     legislation passes the House of Representatives, but stalls 
     in the Senate. Special interests are standing in the way of 
     reform.

  I can say that special interests are not the patients across this 
country, it is not the patient who is looking for the specialist in 
North Carolina.
  The letter goes on to say:

       I can tell you from the point of view of someone on the 
     front line of medicine that America's (and North Carolina's) 
     medical liability crisis has to be solved. Medical lawsuit 
     abuse and unpredictable and huge verdicts are forcing good 
     doctors out of practice. Fewer young doctors are entering 
     important, but high risk specialties, including orthopedics, 
     obstetrics, and emergency medicine. Others are cutting back 
     on critical, but risky procedures, leaving patients to wonder 
     where they will get care when they most need it.

  The cost of defensive medicine alone is staggering. I see it all the 
time: doctors ordering tests and referring patients to specialists more 
out of fear of lawsuits than because doctors believe the tests or extra 
visits are medically indicated. These costs are dragging down our 
health care system and our economy, and they ultimately increase out-
of-pocket patient costs. It is time we fix this broken system.
  I am not sure that anyone summed up the crisis in America in a one-
page letter better than this doctor, this doctor who said that he is on 
the front line of medicine in America and in North Carolina. He put his 
finger on the point that if we don't solve it today, fewer young 
doctors will be entering the profession. That means less choice. Fewer 
doctors doing high-risk procedures in trauma care, something that 
doctors perform because they are trying to save a life.
  Others are cutting back on critical but risky procedures, leaving 
patients to wonder who will be there to do these procedures.
  In this institution, we fight cost and access. In America, we fight 
cost and access. Many times the decisions we make as Americans, such as 
choosing to move to a particular area because the schools are good, 
also includes the big component that there is a major medical facility 
available for us and our family.
  The realities are, as this goes on, those major medical areas are 
going to be more and more important because in rural America there will 
not be doctors. And if there are no doctors, we know today, based upon 
what doctors tell us, there won't be OB/GYNs. We will have to tell 
pregnant women, let us know when you think you are going to go in labor 
because it is a 2-hour drive to the nearest facility that delivers 
babies. Or, as we have seen in some places, no natural child births, 
only Caesarian, because there is a risk of litigation to natural 
delivery that does not exist with the procedure of Caesarian birth. But 
some suggest in this institution that the liability crisis does not 
exist in America.
  We come to the Senate to debate how we change health care policy so 
that health care is accessible and affordable for all Americans. We 
understand today how many Americans, or we think we do, go without 
insurance, without coverage, without the security at night of knowing 
that whatever happens to them, they have a policy to take care of.
  If we did not solve this problem, it does not matter what the policy 
says. If the doctor is not there, where is our level of security? Where 
is the level of security of an American today that lives in a rural 
market where their hospital is closed? Not just their doctor left, but 
because of an 1,800-percent increase in the cost of liability 
insurance, they have decided to close the doors.
  The burden falls on the payer--us--on insurance companies to try to 
raise the reimbursements big enough to make the payments for liability 
coverage. Why? Because of mega-awards, because of the influence those 
mega-awards have, in fact, had on the insurance product itself.
  Dr. Handy was not the only one who wrote me. I had an interesting 
note from a doctor in Fayetteville, a member of a four-person neurology 
practice that cannot attract physicians to join the practice because of 
the inhospitable liability environment that exists. She and her husband 
are both neurosurgeons. They want to stay in North Carolina, but they 
may need to move and are actively looking elsewhere because they cannot 
even attract a neurologist to come into an existing practice.
  They realize, as two neurosurgeons, if your practice cannot grow 
based on today's reimbursement structure, there is no way they can 
survive. Increases in their costs of insurance have limited their 
ability to deliver charity care. They have also decreased their 
participation in workers' comp. Their practice writes off more than $1 
million a year in uncollectible accounts. There are currently only four 
neurosurgeons in Fayetteville, NC--the pentagon of the Army, Fort 
Bragg, NC, where over 55,000 men and women in the U.S. Army call home.
  But some still suggest there is not a crisis. You see, it is easy to 
suggest that something does not exist because I think there is a 
tendency in our system that until it directly affects us, it really 
does not exist.
  The reality is that every day we meet in this incredible, historic 
institution, there are people across this country who do not have 
access to a doctor, who cannot afford the services, who have been 
affected by the fact that the liability crisis in America is, in fact, 
real and has affected them.
  Well, the challenge for this Senate, as we move forward, is to make 
sure our voices are louder than those who suggest there is not a 
crisis, to make sure the human face of those around America--who are 
affected directly and indirectly by the liability crisis that exists in 
medicine today--to make sure their voice is heard, their face is seen, 
that in this institution, as we talk about solutions, we look around 
the country and say: What have others done?
  Well, that is what we are getting ready to do next week. We have 
looked around the country and seen who has been successful. And we are 
going to adopt a model that exists in Texas. It is not one that 
tightens as much as

[[Page 7102]]

California. California, usually not necessarily the one that looks at 
Washington and says: Limit something for us--California woke up and 
said: There may not be a liabilities crisis in America, but there is a 
liability crisis in California, and we are going to put caps in, we are 
going to bring some sanity to the system, we are going to bring in the 
parameters that drive price's down and encourage doctors to practice 
here in, yes, obstetrics, in neurology, in neurosurgery, and thoracic 
surgery.
  California thrives today. What was California's comment about what we 
might do in Washington? It was: My gosh, don't make us raise our caps 
to what you are going to establish in all the States. We are below that 
today. I never thought I would say: California does something right. 
Let's mirror it. But that day has come in the Senate but at a time 
where some still suggest there is not a crisis.
  What do we want to do? Replicate what, in fact, States have 
replicated to address the high cost of health care, the lack of access, 
the flight of doctors, the need for specialists. We want to adopt that 
nationally. It is as simple as that.
  Next week, people will come to the floor of the Senate and they will, 
in an incredible way, suggest there is not a crisis in America. I want 
those in the Chamber today to remember next week not just the doctors 
who say there is a crisis, and it is real, but to remember the patients 
out there who are directly affected by our inability to solve this 
problem. They are the ones for which the safety net is supposed to be 
there to protect them. But the safety net only works if the 
infrastructure is there. This is not about cost by itself today. This 
is about access. And when access goes away, our ability to address it 
with a safety net is gone.
  I urge my colleagues to stay engaged. I look forward to next week's 
debate.
  I thank the Presiding Officer for the time, and I yield back.
  The PRESIDING OFFICER (Mr. Burr). The time of the majority has 
expired.
  The Senator from Texas.
  Mr. CORNYN. Mr. President, I ask unanimous consent to speak for up to 
20 minutes in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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