[Congressional Record (Bound Edition), Volume 152 (2006), Part 5]
[Senate]
[Pages 7167-7169]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     MEDICAL MALPRACTICE LIABILITY

  Mr. FRIST. Mr. President, I will set up those votes in a bit, but I 
want to speak to one of the issues that we will be voting on Monday 
night, and that is the medical malpractice liability issue which, in 
many ways, is destroying the practice of medicine today. As one who has 
spent longer in the profession of a physician/doctor than I have in 
politics, this is something that hurts me as I look to what it is doing 
to patients, to consumers, to all Americans as it drives up their 
health care costs unnecessarily, wastefully, but then, even more 
importantly than that, it affects access to health care. Literally, we 
have expectant moms today who are having to worry whether there will be 
an obstetrician there to deliver their baby.
  We have right now people who should be worrying, if they are in an 
accident today driving to work or driving home from work, about whether 
there will be a trauma surgeon once they arrive at a hospital. That is 
the threshold we have reached, affecting access, affecting cost, and 
affecting availability of health care.
  A couple years ago, I took my son Harrison, who is in college, to 
Ohio, Pennsylvania, and Florida. Those were the hot States during the 
last Presidential campaign. I took him to be with him, and he observed 
a lot as we went to those three States.
  It is interesting, those three States also happen to be three States 
that have been most dramatically impacted by the skyrocketing health 
care medical liability premiums. Because I am a physician, when I went 
to these town meetings or we would go to cafes, physicians would come 
up, their spouses would come up, their family members would come up and 
talk with me and pull me aside--Harrison would be at my side--and say: 
Dr. Frist, something has to change. My dad was a physician. I am in 
practice with my dad. Right now we are going to have to dissolve our 
practice because our health care liability malpractice premiums have 
gotten so high we simply cannot afford to stay in business.
  Then the discussion would continue a little bit and someone else 
would come up, and Harrison would be listening--at the time studying 
pre-med as well as history--and they would say: Dr. Frist, right now I 
am going to get sued. I just got out of my residency, and I am going to 
get sued on average three times in the next 10 or 15 years, sued not 
just for $1,000 or $5,000 but for $1 million or $4 million or $5 
million, even if I have done nothing wrong.
  What hurt me about this is when we got back home after traveling 
around, Harrison took me aside and said: Dad, I know your dad--his 
grandfather, my dad--was a physician who practiced 55 years in family 
practice in cardiology in Middleton, TN. Harrison said: Dad, you love 
that noble profession of medicine, surgery, heart and lung transplants 
and healing, but why in the world would you encourage me, your son, to 
go into a profession that right now, based on what I have heard as we 
have gone around the country, is being destroyed by predatory personal 
injury trial lawyers and frivolous lawsuits?
  It is a hard question to answer. I probably told him it's a noble 
profession and there's nothing greater than the healing process. But he 
looked at me and said: Dad, why would I subject my future wife and my 
family to lawsuit after lawsuit if I have done nothing wrong? Why would 
I jeopardize my own family no matter how noble that profession is?
  I tell that story because it is personal in many ways, but I think it 
signifies why it is important for us to be allowed to proceed to debate 
how we can solve--probably not totally solve but help solve what has 
gotten out of control in our medical liability system today.
  Across the country, rising medical malpractice premiums are driving 
doctors from the practice of medicine, limiting access to care. What 
that means is that your health care costs, my colleagues' health care 
costs, the American people, everybody's health care costs are driven up 
unnecessarily and access is diminished. Doctors leave the practice of 
medicine or they move to

[[Page 7168]]

States where this may not be quite as big a problem, and when you need 
a doctor, they are not there.
  Across the country, one out of two counties do not have an 
obstetrician/gynecologist to deliver a baby or to manage that 
complication from an expectant mom. Seventy-five percent of 
neurosurgeons today no longer operate on children, and an even higher 
number have made a decision not to take a trauma call at a hospital. 
These are highly trained neurosurgeons, surgeons who focus on the brain 
and the back, on the neurological system, which is usually damaged if 
you are in a motor vehicle accident or any kind of blunt trauma 
accident. They basically said: We are not going to take the call; why 
subject ourselves to these exorbitant, frivolous lawsuits that affect 
our access, access for our children, for our families.
  My own State of Tennessee the other day was put on the crisis list, 
one of 20 States now in crisis; 81 out of 95 counties in Tennessee 
don't have a neurosurgeon; half don't have an orthopedic surgeon, an 
emergency physician or an OB/GYN.
  So we see these unnecessarily high malpractice premiums driving 
doctors out of the State, out of the profession. The average 
malpractice premiums in my State of Tennessee have increased a whopping 
89 percent in the past 6 years. Again, these premium increases drive up 
the cost of your health care.
  Doctors pass on the premiums they have to pay to the insurance 
company and the insurance company passes it on to you, so it affects 
everybody's health care unnecessarily.
  Without reforms, over two-thirds of Tennessee physicians report they 
are contemplating early retirement or just totally changing careers. 
Dr. Steven Stack, a 34-year-old emergency doctor from Memphis is moving 
to Lexington, KY, to escape the litigation lottery. He told me the 
following:

       The high risk nature of my chosen speciality, the 
     associated predator tactics of the trial bar, and very 
     unreasonable and unfunded regulatory burdens imposed by 
     governmental agencies have robbed me of much of the 
     professional satisfaction I otherwise receive in caring for 
     the health of my patients. . . . A fair number of my friends 
     share my disillusionment and hope to leave the practice of 
     medicine as expeditiously as possible.

  Dr. Stack and his friends he referred to are far from alone. We all 
hear it. We get the letters. We get the e-mails. We have the 
conversations.
  Dr. Justin Hensley of Johnson City, TN, says:

       As a Tennessee resident and having grown up in Knoxville, 
     it pains me that I will choose to do my residency and 
     practice in another State simply because the climate in my 
     State is unbearable. My fiancee, who is also a resident and 
     medical student, feels the same way.

  The issue is even affecting the futures of medical students, the 
future of medicine, the people who will be delivering care to our 
children, to the next generation.
  Patrick Emerson, writing from Memphis, reports:

       As a medical student here in Tennessee, the issue of 
     medical liability is definitely a concern both to me and many 
     of my classmates. The issue is going to shape our decisions 
     in medicine drastically in the coming years, from what 
     speciality we pick to what tests we order for our patients. 
     Without reform, we are doing a grave injustice to our fellow 
     citizens of Tennessee by depriving them of cost-effective and 
     efficient care.

  Patrick's story is one of the many stories that are pouring in. The 
bottom line: The system is broken and it needs to be fixed. The good 
news, on the optimistic side, is if we are allowed to, we can fix it. 
We can make this problem go away.
  It is not just the bad doctors who are getting sued. People will say 
we have to have a strong medical liability system, strong medical 
malpractice system. I agree, I have been right in the middle of it. I 
have been right in the middle of where medicine is practiced, and with 
the complexity, the technology, the great miracles that can be done, is 
still subject to malpractice, still subject to medical errors--and I 
know that--and we need to have a fair, commonsense, balanced 
compensation system that punishes malpractice. But good doctors are 
getting dragged into this as well.
  Consider this one statistic: Of those who have practiced in Tennessee 
for the past 10 years, in my profession, heart surgery, 100 percent of 
cardiac surgeons have been sued. Of those who have been in practice 10 
years, 92 percent of orthopedic surgeons, bone doctors, have been sued; 
70 percent of all doctors have faced legal action.
  That is common sense, and the American people get it. But I am not 
sure all of our colleagues get it. Does it make sense or does anybody 
believe that all heart surgeons in Tennessee are bad or that all are 
committing malpractice, bad practice or that 7 of 10 doctors across the 
State deserve to be sued? Of course not. The system is out of control. 
The problem affects not just my State but patients and doctors from 
across the country. Rising medical liability premiums are increasing 
because of health care for every American. Again, it is common sense. 
The statistic is that 8 out of 10 doctors practice defensive medicine--
defensive medicine--to fend off these frivolous lawsuits, and it makes 
sense. Right now, if you know with almost 100 percent certainty or 70 
percent certainty that you are going to be sued no matter what you do--
no matter what you do--what you are going to do is put a paper trail 
out there that will protect you in the courtroom. It makes sense. You 
want to protect yourself, and that is what you will do. You prescribe a 
few extra tests that are not necessary--something you wouldn't do 
otherwise. You prescribe an extra blood test, maybe an extra CAT scan, 
maybe an extra positron emission tomography, an extra fluorodeoxy with 
glucose, a PET scan--unnecessary, totally unnecessary, but you do it 
because the likelihood is you are going to be sued. You do it to have 
that whole paper record there showing that you did the right thing. 
That is a cost. It is a huge cost, and it is a waste of money. It 
doesn't result in better patient care. It is a total waste.
  Again, it gives me a sense of optimism because if you omit this 
waste--I would call it fraud--this abuse out of the system, everybody's 
cost of health care goes down.
  It is estimated that the defensive medicine costs in this country are 
over $100 billion. Wasted money. It is not Government money, it is your 
money. It is the American people's money. It is not even your tax 
dollars, it is how much you have to pay for that health care premium. 
That is why, if you are uninsured, you can't afford an insurance 
policy, because the cost of your insurance policy is too high.
  Last month, I was in Texas, and again it is remarkable because 
medical liability reform is alive and well there, and it is working. I 
talked to patients, I talked to doctors, and I talked to nurses, and it 
is working. Since 2003, medical malpractice claims, following their 
reform, have dropped by at least 80 percent in most Texas counties. I 
talked just moments ago about physicians fleeing States because of 
medical liability, and since their reform was put in place, 3,000 
doctors haven't fled that State but are coming back into that State 
today. We need to get on board with that reform movement.
  When children who are dying of cancer can't get the lifesaving 
surgery they need, when a mother is forced to drive hundreds of miles 
to a doctor just to have her baby delivered, when doctors who have 
spent years training, years training and sacrificing to give people 
hope are having to leave the practice of medicine, it is time for us to 
act.
  In a few moments, I will be filing cloture on the medical liability 
bill, and on Monday we will have those votes. I know a number of my 
colleagues will come by today and on Monday to explain the legislation 
as well as make the case of the importance of that legislation. I urge 
my colleagues, for the sake of all Americans and every citizen who is 
either walking into a doctor's office now or who will walk into a 
doctor's office in the future, that we vote to move forward on this 
bill.
  I have seen firsthand that we have the best medicine in the world. 
The fact that I was able to do heart transplants with the technology on 
a routine basis, the fact that I was able to do lung transplants on a 
routine basis

[[Page 7169]]

or to use that positron emission tomography to make a diagnosis on the 
metabolic processes of the heart or the brain today is truly astounding 
because it translates into better health care for all. We have the best 
doctors, we have the best medical schools, and we have the best 
hospitals in the world. We have the best laboratories. We have the best 
universities and schools. I have been a beneficiary of that, and I have 
witnessed it. But we have a broken medical liability system, and it is 
bringing down that greatness. By pulling together, we are going to be 
able to deliver to the American people a system that works, and this 
will be a major step forward.

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