[Congressional Record (Bound Edition), Volume 152 (2006), Part 6]
[Senate]
[Pages 7219-7243]
[From the U.S. Government Publishing Office, www.gpo.gov]




     MEDICAL CARE ACCESS PROTECTION ACT OF 2006--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration on the motion to proceed to S. 22, which the clerk 
will report.
  The legislative clerk read as follows:

       Motion to proceed to Calendar No. 422, S. 22, a bill 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 for other purposes.

  The PRESIDING OFFICER. Under the previous order, the time from 1:30 
p.m. until 2 p.m. shall be under the control of the minority, and the 
time from 2 p.m. to 2:30 p.m. shall be under the control of the 
majority. The time will rotate in this format until the time from 5 
p.m. to 5:15 p.m. which will be under the control of the majority.
  The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, under the previous order, with 
the time being allocated to this side, I wish to speak on the Medicare 
prescription drug deadline that is fast approaching 1 week from today. 
Since this week is called Health Week In the Senate, it is strange we 
are not going to be discussing the extension of the deadline of May 15, 
a week from today. It is a deadline for all the senior citizens. For 
those who want to sign up for the Medicare prescription drug benefit, 
they have to do so by the deadline; otherwise, they get penalized 1 
percent a month. If they sign up for the wrong plan, they are stuck for 
a year and they cannot change plans.
  Of course, senior citizens are having a very difficult time figuring 
out in this multiplicity of plans what the formulary is in a plan, if 
it would cover their prescription drugs. If suddenly they choose a plan 
that does not cover their prescriptions, they are stuck for a year 
unless they do not sign up, and then they are going to be penalized 
economically up to 12 percent a year.
  It is imperative we take up this legislation and extend the deadline 
and provide essential protections for Medicare beneficiaries during the 
first year of implementation of this Medicare prescription drug 
benefit.
  We have been advocating for some period of time providing seniors 
with a meaningful prescription drug coverage, not one that is overly 
confusing and one that fails to address the escalating costs of 
prescription drugs. The plan has passed. It passed several years ago, 
and it is being implemented. Our job now is to help the seniors who are 
going to choose to enroll in the program, to help them pick the plan 
that is right for them. The stakes are very high. We must provide them 
with the time and resources they need to make an informed decision.
  I have spoken with Medicare beneficiaries all across my State of 
Florida.

[[Page 7220]]

They are understandably confused. They are concerned about this new 
prescription drug benefit. They are facing a number of private plan 
options. Sorting through all of these options is difficult for our 
senior citizens.
  This is not the first time the senior Senator from Florida has spoken 
in the Senate. I have offered this to the Senate several times. It has 
received majority votes, but we have not passed it into law.
  An example: In my State, there are 18 companies offering 43 
standalone prescription drug plans. Each of these different options 
differs in terms of premiums, cost sharing requirements, drugs covered, 
and pharmacy access. Sorting through these plans is complicated and 
time consuming.
  Further complicating matters, the Medicare drug benefit has been 
marred by implementation problems. This adds to the confusion for the 
Senators. To give an example, in a rural community where there is only 
one pharmacy, seniors naturally want to get their prescriptions from 
that pharmacy. What happens if that pharmacy is not covered in the 
formulary of the plan they pick?
  They need time to sort through all of this. Yet the beneficiaries, 
the Medicare recipients who do not select their plan, 1 week from 
today, will face a substantial financial penalty.
  On the other hand, if we can delay the late enrollment penalties and 
give a Medicare recipient the chance to change plans once during the 
first year, we can make sure our senior citizen constituents are not 
forced to make a hasty decision they are going to regret later.
  I have introduced S. 1841, the Medicare Informed Choice Act. This 
bill extends the annual open enrollment period under the Medicare 
prescription drug plan through all of this year of 2006. It will not 
impose a late enrollment penalty and allows a one-time change in plans 
at any point in 2006.
  According to the Congressional Budget Office, if we extend the 
deadline for all of 2006, over 1 million more senior citizens will sign 
up for the program. In addition, another 7.5 million seniors will pay 
lower premiums because they will have fewer penalties. Why in the world 
would we not be doing this for our senior citizens?
  A recent poll by the Kaiser Family Foundation demonstrates the need 
for this legislation. In that survey, 4 in 10 elderly Americans still 
do not know the enrollment deadline for the new Medicare drug benefit 
is May 15. In addition, in that survey, nearly half of all the seniors 
are unaware they face a financial penalty if they delay.
  This bill I have filed, S. 1841, is a time-limited step to help ease 
the pressure of the first year of this new prescription drug benefit. 
It is time to stop playing politics with the health care of our 
seniors. It is time to start putting their needs first.
  The Senators have heard their citizens back home. They are very clear 
in what they would like us to do. I urge all of our colleagues, every 
time we bring this up--a majority favor this position, but it is always 
beat down, saying we have to have the deadline. There is no reason we 
should put this imposition on our senior citizens 1 week from today 
when they are going to pay the penalties.
  As we have already indicated earlier, I ask unanimous consent in the 
Senate that upon disposition of Calendar No. 417, S. 1955, the Enzi 
small business health care bill, the Committee on Finance be discharged 
from further consideration of the bill I have just talked about, S. 
1841, and that the Senate proceed then to its immediate consideration. 
That is my unanimous consent request.
  The PRESIDING OFFICER. In my capacity as a Senator from Alabama, I 
object. The matter has not been cleared by committee or the Republican 
leadership.
  Mr. NELSON of Florida. I understand that is the position of the 
majority.
  We will continue to fight this out over the course of this week. This 
is ``doing right'' by our seniors. As the Good Book says: Come and let 
us reason together.
  I am offering an extension for the entire year. We ought to have some 
coming together, to reason together, on some kind of extension, even if 
it is not for the remaining 6 months of the year in which we can help 
out our senior citizens.
  I will continue to press this in the course of this week's debate. I 
will continue throughout, as I have just indicated, to bring up this 
matter. I will continue to ask unanimous consent from the Senate that 
this matter be brought to the Senate because of the emergency nature of 
meeting the deadline a week from today, May 15, to help out our senior 
citizens.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, with great fanfare, the majority leader 
has announced this is Health Week in the Senate. This is a week he has 
set to address the Nation's urgent health issues. But there is 
something very big missing from this agenda. The American people are 
demanding action on embryonic stem cell research.
  In poll after poll, the overwhelming majority of Americans favor 
lifting the President's arbitrary and harsh restrictions on embryonic 
stem cell research. The American people want the Senate to vote on H.R. 
810, a bill passed almost a year ago, 350 days ago to be exact, by the 
House of Representatives. It was offered by a Republican, Congressman 
Mike Castle from Delaware, and a Democrat, Congresswoman DeGette from 
Colorado. It was bipartisan. It passed the House. Yet it has been 
sitting here for nearly a year and we cannot bring it up.
  How in the world can we have Health Week in the Senate and not bring 
up H.R. 810 and allow consideration of the public's No. 1 health 
research priority? Instead we are scheduled to debate three bills that 
have no chance of passage in the Senate. The majority leader knows it, 
I know it, and the rest of the Senate knows it.
  It is a gimmick that we are talking about health care. However, we 
will have bills that somehow excite the political base, get certain 
segments moving in this political year.
  The American people want the Senate to address the issue of embryonic 
stem cell research. I tried to explain to my nephew, Kelly, who was 
injured 26 years ago in a tragic accident on an aircraft carrier. He 
has been a quadriplegic ever since. He finds it incomprehensible and 
totally unacceptable that we in the Senate cannot bring up this bill 
and pass it. I tried to explain to him that it is politics. He says 
this is ridiculous, it shouldn't be Democrat or Republican.
  This is the most promising revolutionary avenue of biomedical 
research, and it is being blocked because of politics? Try explaining 
that to someone with juvenile diabetes, ALS, Parkinson's, spinal cord 
injuries.
  I appreciate the fact that some Republican Senators have been 
outspoken. I see Senator Hatch in the Senate, Senator Specter, and 
Senator Smith urging the majority leader to bring up the bill. Senator 
Frist himself gave an eloquent and courageous speech last summer when 
he endorsed H.R. 810.
  Why don't we have it in the Senate? This is Health Week. Bring it up.
  Leader Frist said last summer:

       Therefore I believe the President's policy should be 
     modified. We should expand Federal funding and current 
     guidelines governing stem cell research carefully and 
     thoughtfully, staying within ethical bounds.

  That is what the majority leader said last summer. I could not agree 
more. In December, they asked unanimous consent to pass the cord blood 
bill. I spoke on it at that time. We wanted the two to go together. We 
let the cord blood bill pass--fine, I am all for that--with a promise 
that we would somehow get a vote on H.R. 810 sometime in this session.
  This session is almost half over. We have Health Week. Stem cell 
research is not on the agenda. That is a shame. Why don't we bring up 
H.R. 810 and debate it? We could have a time limit. The votes are here 
to pass it. We know that. We know the votes are here to pass it. Why 
don't we bring it up?
  On the President's arbitrary date of August 9, 2001, he said there 
were 78

[[Page 7221]]

stem cell lines. We now know there are only 22. Of those 22, all are 
contaminated with mouse cells. They will never be used for any kind of 
human interventions.
  The President's policy of August 9, 2001, is a dead end. It offers 
false hope to millions of people across America and around the world 
who are suffering from diseases that could be cured or treated 
throughout embryonic stem cell research.
  Scientists have made great advances in deriving the stem cell lines 
since August of 2001. They have been grown without mouse cells. 
Shouldn't our top scientists be studying those lines instead of being 
limited to the 22 that will never be used in humans?
  In closing, we do not expect our astronomers to study the heavens 
with Galileo's telescope. We do not expect geologists to study the 
Earth with a tape measure. It is time we move to the next level of 
research to help people who are suffering from ALS, Parkinson's 
disease, and juvenile diabetes. We should bring up embryonic stem cell 
research and pass it in the Senate during Health Week.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Utah.
  Mr. HATCH. Madam President, I share the frustration of the 
distinguished Senator from Iowa about stem cell research, but I do 
believe the majority leader is committed to bringing it up, and I 
expect him to do that, I hope, within the near future.
  But today I rise to speak in support of S. 22, the Medical Care 
Access and Protection Act of 2006, and S. 23, the Healthy Mothers and 
Healthy Babies Access to Care Act. I am a proud cosponsor of both 
bills.
  These bills address the medical liability and litigation crisis in 
our country, a crisis that is preventing patients from receiving high-
quality health care or, in some cases, any care at all because doctors 
are being driven out of practice. This crisis is limiting or denying 
access to vital medical care and needlessly increasing the cost of care 
for every American.
  This issue is much more difficult to assess than just studying 
physicians who leave practice. The more important issue is how 
physicians are changing their mode of practice and financial structure 
in response to increasing costs from medical malpractice insurance 
premiums.
  As many know, this crisis began when obstetrician/gynecologists 
started getting out of the obstetric care business. Unfortunately, it 
has now progressed to almost all medical specialties, limiting high-
risk/low-return activities, such as emergency room coverage, to limit 
exposure. Just last week, the RAND Corporation reported that over 70 
percent of emergency rooms in this country do not have adequate 
physician staffing. And who ends up suffering the most as a result? 
Well, the patient does.
  In a city such as Salt Lake, where there are academic medical 
centers, this results in patient cases shifting from lower cost 
community hospitals to the higher cost settings.
  The chief operating officer of our University of Utah Hospital was in 
my office recently to discuss the impact of this problem on the 
financial stability of the hospital. He told us it is becoming 
increasingly difficult for his hospital to provide care to the poor and 
uninsured.
  On the financial side, we are seeing physicians' practices modifying 
their financial structure and, in some cases, taking advantage of the 
fact that there is growing demand and diminishing supply in the 
physician world. Primary care physicians are creating upfront fees for 
services which also allow for reduced practice size. The bottom line 
is, lacking a different strategy for reimbursement and/or practice 
costs--a good part of which is driven by malpractice insurance--we are 
driving private physicians away from traditional settings. Instead, we 
are creating a trend that adversely affects physician access and supply 
and increases costs in other sectors of the health care environment.
  The Utah Hospital Association president tells me that a major 
hospital system in Utah saw its malpractice premiums increase 300 
percent in the last 10 years, while at the same time being continually 
recognized nationally for its outstanding clinical practice.
  The time to act is now. This crisis is jeopardizing access to health 
care for many Americans. The medical liability crisis also is 
inhibiting efforts to improve patient safety and stifling medical 
innovation. Excessive litigation is adding billions of dollars in 
increased costs and reducing access to high-quality health care.
  I am really deeply concerned that we are needlessly compromising 
patient safety and quality health care. We know that about 4 percent of 
hospitalizations involve an adverse event and 1 percent of 
hospitalizations involve an injury that would be considered negligent 
in court.
  These numbers have been consistent in large studies conducted in my 
home State of Utah, New York, California, and Colorado, just to mention 
4 States. However, the equally troubling statistic is that few cases 
with actual negligent injuries result in claims and less than one-
fifth--that is 17 percent--of claims filed actually involve a negligent 
injury.
  This situation has been likened to a traffic cop who regularly gives 
out more tickets to drivers who go through green lights than to those 
who run through red lights. Clearly, nobody would defend that method of 
ensuring traffic safety. And we should not accept such an inefficient 
and inequitable method of ensuring patient safety. These numbers are a 
searing indictment of the current medical liability system.
  I believe we can do better for the American people. The two bills 
before us are important steps in that path.
  The problem is particularly acute for women who need obstetrical and 
gynecological care because OB/GYN is among the top three specialties 
with the highest professional liability insurance premiums. This has 
led to many leaving their practices, thus resulting in a shortage of 
doctors in many States, including my home State of Utah.
  Studies by both the Utah Medical Association and the Utah Chapter of 
the American College of Obstetricians and Gynecologists, often called 
ACOG, underscore the problem in my State. Over half--50.5 percent--of 
Utah family practitioners have already given up obstetrical services or 
never even begun the practice of obstetrics at all.
  Of the remaining 49.5 percent who still deliver babies, 32.7 percent 
say they plan to stop providing obstetric services within the next 
decade. Most plan to stop within the next 5 years.
  An ACOG survey revealed that over half--53.16 percent--of OB/GYNs in 
Utah have changed their practice. They are retiring, relocating, or 
dropping obstetrics because of the medical liability reform crisis. 
This change in practice leaves 1,458 pregnant Utahns without OB/GYN 
care.
  The medical liability crisis, while affecting all medical specialties 
and practices, hits OB/GYN practices especially hard. Astonishingly, 
three-quarters--76.5 percent--of obstetrician/gynecologists report 
being sued at least once in their career. Indeed, over one-fourth of 
OB/GYN doctors will be sued for care given during their residency. 
These numbers have discouraged Americans finishing medical school from 
choosing this vital specialty. I know this is the case in my home State 
of Utah.
  Currently, one-third of OB/GYN residency slots are filled by foreign 
medical graduates, compared to only 14 percent one decade ago. That is 
one-third to 14 percent. OB/GYN doctors are particularly vulnerable to 
unjustified lawsuits because of the tendency to blame the doctor for 
brain-injured infants, although research has proven that physician 
error is responsible for less than 4 percent of all neurologically 
impaired babies.
  Ensuring the availability of high-quality prenatal and delivery care 
for pregnant women and their babies--the most vulnerable members of our 
society--is imperative. We need to pass this legislation.
  An August 2003 GAO report concluded that States that have enacted 
tort reform laws with caps on noneconomic

[[Page 7222]]

damages have slower growth rates in medical malpractice premiums and 
claims payments. From 2001 to 2002, the average premiums for medical 
malpractice insurance increased about 10 percent in States with caps on 
noneconomic damages. In comparison, States with more limited reforms 
experienced an increase of 29 percent in medical malpractice premiums. 
Overall, the situation has gotten worse. In 2004, malpractice insurance 
costs increased 55 percent; in 2005, 34 percent; and in 2006, 18 
percent. That is 107 percent in just 3 years. Now, under anybody's 
measure, that is an unfair cost for physicians to bear for a system 
that does not achieve the goal of either rewarding the most injured 
patients or improving the safety and quality of health care.
  Medical liability litigation directly and dramatically increases 
health care costs for all Americans. In addition, skyrocketing medical 
litigation costs indirectly increase health care costs by changing the 
way doctors practice medicine.
  Defensive medicine is defined as medical care that is primarily or 
solely motivated by fear of malpractice claims and not by the patient's 
medical condition. According to a survey of 1,800 doctors published in 
the journal, Medical Economics, more than three-quarters of doctors 
believed they must practice defensive medicine. A study of defensive 
medicine conducted by the current director of the Centers for Medicare 
and Medicaid Services, Dr. Mark McClellan, before he took office used 
national health expenditure data and showed that medical liability 
reform had the potential to reduce defensive medicine expenditures by 
$69 billion to $124 billion in 2001, an amount that is between 3.2 and 
5.8 times the amount of malpractice premiums. That amount would be 
significantly greater today
  The financial toll of defensive medicine is great and especially 
significant for reform purposes as it does not produce any positive 
health benefits. Not only does defensive medicine increase health care 
costs, it also puts Americans at avoidable risk.
  Now, there is good defensive medicine and there is bad defensive 
medicine. But the vast majority of defensive medicine is extra defenses 
in order to have the history of the patient show the doctor did 
everything in his power. Frankly, that leads to more and increased 
costs every time the doctor has to do extraordinary analyses just to 
make sure his history has everything he possibly can think of in it, 
even though that is very seldom necessary.
  Nearly every test and every treatment has possible side effects. 
Thus, every unnecessary test, procedure, and treatment potentially puts 
a patient in harm's way. Seventy-six percent of physicians are 
concerned that malpractice litigation has hurt their ability to provide 
quality care to patients.
  What can we do to address this crisis? The answer is plenty. And 
there are excellent examples of what works.
  HHS has reported how reasonable reforms in some States have reduced 
health care costs and improved access to and quality of care. More 
specifically, in States with limits of $250,000 to $350,000 on 
noneconomic damages, premiums have increased at an average of just 18 
percent compared to 45 percent in States without such limits.
  California enacted the Medical Injury Compensation Reform Act, also 
known as MICRA, more than a quarter century ago. MICRA slowed the rate 
of increase in medical liability premiums dramatically without 
affecting negatively the quality of health care received by the State's 
residents. As a result, doctors are not leaving California.
  Furthermore, between 1976 and 2000, premiums increased by 167 percent 
in California while they increased three times as much--505 percent--in 
the rest of the country. Consequently, Californians were saved billions 
of dollars in health care costs and Federal taxpayers were saved 
billions of dollars in the Medicare and Medicaid Programs.
  Before coming to Congress, I litigated several medical liability 
cases as a defense lawyer. I have seen heart-wrenching cases in which 
mistakes were made. But, more often, I have seen heart-wrenching cases 
in which mistakes were not made and doctors were forced to expend 
valuable time and resources defending themselves against frivolous 
lawsuits. And the vast majority of these suits are frivolous.
  An Institute of Medicine report, ``To Err Is Human,'' concluded that 
``the majority of medical errors do not result from individual 
recklessness or the actions of a particular group--this is not a `bad 
apple' problem. More commonly, errors are caused by faulty systems, 
processes, and conditions that lead people to make mistakes or fail to 
prevent them.''
  We need reform to improve the health care systems and processes that 
allow errors to occur and to identify better when malpractice has not 
occurred.
  The reform that I envision would address litigation abuses in order 
to provide swift and appropriate compensation for malpractice victims, 
redress for serious problems, and ensure that medical liability costs 
do not prevent patients from accessing the care they need.
  So we need to move ahead with legislation to improve patient safety 
and reduce medical errors.
  Without tort reform, juries are awarding astounding and unreasonable 
sums for pain and suffering. A sizable portion of those awards goes to 
the attorney rather than the patient. The result is that doctors cannot 
get insurance and patients cannot get the care they need.
  All Americans deserve the access to care, the cost savings, and the 
legal protections that States like California and Texas provide their 
residents. Today's bills will allow us to begin to address this crisis 
in our health care system, give our citizens, especially women and 
their babies, access to OB/GYN doctors, and enable physicians to 
provide high-quality, cost-effective medical care.
  So I strongly support this legislation and urge my colleagues to 
support cloture on the motion to proceed.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Enzi). The Senator from Alaska.
  Ms. MURKOWSKI. Mr. President, I appreciated the opportunity to listen 
to the statement of my colleague from Utah and hearing of the effects 
that medical malpractice liability costs are having in his particular 
State. I think all of us in this body could stand on the Senate floor 
and discuss what is happening in our respective States and in our 
respective regions as we look at how medical malpractice issues are 
affecting access to care and access to quality physicians.
  Truly, across the Nation, emergency departments are losing staff. 
Critical services are being cut and even trauma units being closed. One 
in seven obstetricians has stopped delivering babies. Countless 
surgeons are no longer performing high-risk procedures. You have to 
stop and ask the question: What has happened? What has caused this 
breakdown in our Nation's medical liability system?
  Skyrocketing medical liability rates are forcing so many of our 
doctors across the country to stop practicing medicine. It is the 
millions of patients around the country who suffer when this happens.
  In the State of Alaska, where our patients, my constituents, live 
throughout some 586,000 square miles, the situation is chilling. It is 
a crisis. We have 25 to 30 percent fewer physicians than our population 
needs. In fact, Alaska has one of the smallest numbers of physicians 
per capita in the United States. We need a minimum of 500 more doctors 
just to be at the national average of physicians per capita.
  An American Medical News article recently declared Alaska's 
precarious situation by stating that ``Alaska has long ranked among the 
worst states in terms of physician supply.'' Just recently, we learned 
about new deployments with one of our medical units in the Anchorage 
area coming out of Elmendorf. We have had a recent deployment of 
Alaskan military physicians and health care providers, and this month 
we are losing over 60 health care providers. So the few civilian 
physicians we have in the area are being

[[Page 7223]]

asked to absorb some 5,400 military and military families into their 
already strained practices.
  In certain of the physician specialties, the shortages there are at 
even worse levels.
  For example, we all know Alaska is a huge State, a State larger than 
Texas, California, and Montana combined. Envision that area. We have 
lost half of our internists. Over one-half of the internist population 
is now gone from the State of Alaska. And, in Alaska, a State where we 
have the highest rate of traumatic brain injury in the Nation, we have 
three neurosurgeons for the entire State. Where do you go? You have to 
go outside, you go to Seattle. But you have to leave the State for that 
medical care.
  In Nome, a town in western Alaska where my mother was born, there are 
no anesthesiologists. Nome is the regional hub in the Northwest. There 
are no anesthesiologists. So if you are a woman who is delivering a 
baby and the condition requires that a C-section be performed, you 
can't have the C-section done in Nome because there is no 
anesthesiologist. You have to get on a jet and fly an hour and a half 
to Anchorage. These are the situations we deal with in Alaska on a 
daily basis.
  Many of these physicians were forced out of practice because they 
could no longer afford their medical liability premiums. Our physician 
shortage crisis was a key reason that medical liability reform was so 
important to Alaska. It was last May, as the legislature concluded its 
business, as they are doing this week, that the Alaska State 
Legislature passed a medical liability reform bill. Like the bills 
currently before the Senate, the Alaska bill fully compensates a 
patient for all quantifiable damages, such as lost wages and all 
medical and future medical costs. And like the legislation we have 
before us, the Alaska law places reasonable limitations on 
unquantifiable, noneconomic damages.
  The American Academy of Actuaries has stated that placing limitations 
on unquantifiable, noneconomic damages is ``imperative in stabilizing 
the physician professional liability insurance marketplace.''
  Our hope with the new legislation is that the Alaska law will provide 
equitable and predictable settlements in medical injury cases resulting 
in a more stable, professional liability insurance marketplace and, 
most importantly, it will help us with the recruitment of physicians to 
fill the chronic shortage.
  I am happy to report that our medical liability reform does appear to 
be working. Ketchikan General Hospital, for the first time in years, 
has been able to recruit two new physicians. We have an internist and a 
general surgeon. For the first time also in years, I am told, their 
medical liability premiums have not increased.
  Additionally, the Mat-Suu Valley has been able to recruit a 
cardiologist and Anchorage has finally been able to recruit a 
reconstructive surgeon. Both of these physicians fled their states that 
were in ``liability crisis'' and moved to Alaska where reform has been 
enacted. This is good news.
  However, this is an issue that has national implications. That is why 
we in Washington must act now. The bills before the Senate, S. 22 and 
S. 23, are based on a fair and commonsense approach that passed in the 
State of Texas. As a result of the Texas law, physicians are returning 
to that State, particularly in the underserved specialties and 
counties. Insurance premiums to protect against frivolous lawsuits have 
declined dramatically, with the State's largest carrier reporting 
declines of up to 22 percent and other carriers reducing premiums by an 
average of 13 percent. The number of lawsuits filed against doctors has 
been cut almost in half.
  Too many lives around the Nation are threatened or lost because good, 
quality physicians are forced out of their practice. A majority of the 
American public supports medical liability reform and ending lawsuit 
abuse. It is time that the Senate passed effective medical liability 
reform. I am pleased we are at that juncture today.
  I see the chairman of the HELP Committee. He has done a great job on 
so many of these issues.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sessions). The Senator from Wyoming.
  Mr. ENZI. Mr. President, I thank the Senator from Alaska for her kind 
comments. I want to make a few comments about medical liability, and 
then I want to talk about a bill for which we will be voting tomorrow 
morning on the motion to proceed. There is not much debate time on that 
so I will try to work in about 5 minutes on it and hope that that will 
convince everybody it needs to be debated. That is all we are going to 
be voting on, whether we ought to debate it at all.
  First, I want to read a little bit from a book entitled ``Fixing Our 
Broken Health Care System.'' It was written by Senator Charles Scott, a 
State Senator from Wyoming. He has been the chairman of the Labor, 
Health, and Social Services Committee for many years. He was chairman 
of that committee when I served. He writes in his book:

       We in Wyoming are having the problem in one of our 
     communities right now. In 2003 the doctors in Newcastle quit 
     delivering babies. The community is small and the doctors 
     each were delivering between 20 and 25 babies a year. At that 
     rate their malpractice insurance costs had risen to over 
     $1,000 per delivery.

  He does the math to show what the difference would be between 
obstetrics and family health, and divided it by the 20 babies.

       Roughly half of their deliveries are paid for through the 
     state Medicaid program which pays $866.25 per delivery for a 
     normal . . . delivery; the payment increases to $1,401.87 if 
     normal prenatal and post-partum care is provided.

  The cost for them is $1,317, and the most they can get is $1,401.87. 
Usually you get $866. You can see where they are losing money before 
they pay rent, before they pay the nurses, before they pay themselves a 
dime. They couldn't raise their private rates because in that community 
most young couples starting a family couldn't afford a higher rate, and 
too many were not covered by insurance.

       The economics were clear--the doctors were losing money 
     with each delivery. They dropped the obstetric part of their 
     practice, and now a woman in Newcastle has to be driven 73 
     miles to Gillette, Wyoming, or 80 miles to Rapid City, South 
     Dakota, to have her baby delivered by a medical doctor.

  You have to remember that we get a little bit of snow out in Wyoming 
sometimes, which can make that journey a little bit hazardous because 
there is a lot of cost to traveling 73 or 80 miles to have your baby, 
and probably cuts into the prenatal care.
  I want to devote the remaining couple of minutes I have to talking 
about the bill we will vote on tomorrow morning with hardly any debate. 
It shouldn't hardly take any debate because the motion that we will be 
debating is whether we are going to debate a bill that will provide 
health care for small businesses across this Nation, that is supported 
by over 200 small business associations that recognize that there are 
about 22 million employers and employees out there who are uninsured 
because they can't afford it. This bill is designed to give them access 
to insurance. They have none right now. They recognize what they need 
to be able to do is ban together across State lines with their 
association to have enough clout to negotiate with their insurance 
carrier so they can get a lower rate.
  But what we are talking about now is cloture on a motion to proceed. 
That allows for about 3 days' worth of debate, normally, before you get 
the vote. Then when you have the vote, you devote another 30 hours to 
deciding whether you are going to debate the bill or not. I am hoping 
the other side will see the need not to have this vote. I know they are 
hearing from their small businessmen. Everybody knows that small 
business is the backbone of the U.S. economy. If they have looked at 
the polls, they have found that 89 percent of the people in the United 
States, even after hearing the disadvantage of the old AHP form of this 
legislation, which is not this legislation, even after hearing those 
disadvantages, 89 percent said this legislation was needed to save 
small businesses.
  We shouldn't be taking a needless vote. I am hoping it will be 
vitiated in

[[Page 7224]]

the morning, and we will go ahead with the debate so people can see 
where the bill is going to go. I have never seen so much money spent in 
opposition to a bill before there was even permission to debate it. And 
neither have all the people who called me from Wyoming, other places in 
the United States, and in the District. You may have heard ads that 
said: Stop Enzi.
  It isn't stop Enzi. It is keep small business from being able to get 
reasonable insurance. That shouldn't happen before a debate. That kind 
of thing sometimes happens when a bill is coming out of conference 
committee, after it has been amended on the floor of the Senate, after 
it has been amended on the floor of the House, after the two sides have 
gotten together and said: Is there a solution on which we can agree?
  If they agree on something that is radical, then this kind of action 
is usually done, not when we are talking about whether we ought to 
debate it, whether we ought to amend it, where it ought to go, where it 
can go, and what can be done. This bill needs to be voted on after a 
debate, not stopped from having a debate.
  The NFIB collected 500,000 petitions asking for us to debate this 
bill. It isn't the same bill that we have been talking about before, 
the bill that the House has passed eight times in the past. This is a 
different bill. I got the insurance companies and the insurance 
commissioners to sit down with the associations and talk about a fair 
way of maintaining State control and maintaining consumer oversight at 
the State level. I have to say there are a lot of rumors out there. 
That is partly what PBS did. They reported a bunch of assertions 
without verification.
  We are trying to get that corrected now. But I have never seen a bill 
that generated so much opposition before it was even debated. I hope we 
will cut that out and go ahead and vitiate the cloture motion so that 
we don't have to take the 30 minutes it is going to take to do that 
vote, and get right to the debate and start offering amendments and 
debate what can be done.
  That is the process we ought to use. That is the process that we 
normally use. But I suspect there is a lot of money that can be lost if 
those small businessmen can actually negotiate against the insurance 
companies. I will get into that more when it is the appropriate time, 
not when we are talking about whether we ought to proceed on the bill 
at all.
  I see that I have used my time. I yield the floor.
  The PRESIDING OFFICER (Mr. Allen). The Senator from North Dakota is 
recognized.
  Mr. DORGAN. Mr. President, today marks the start of what the majority 
leader has called Health Week in the Senate. We start today with two 
cloture votes because legislation has been brought to the Senate that 
deals with what is called medical malpractice, or ``medmal,'' reform. 
The bills we are being asked to consider have not been before a Senate 
committee, have not been a part of a committee hearing. They have just 
been brought to the floor of the Senate so we can have two cloture 
votes, both of which will fail. This is about someone wanting to cross 
a check off their list of what they feel they must do in the Senate. It 
hardly serves the opportunity to address serious issues. There is a 
way, for example, to address the issue of medical malpractice reform. 
But it is not this way.
  I must say, as I said the other day, there are challenges in this 
area, but I think the way to address the challenge of medical 
malpractice is not to decide that victims of medical malpractice should 
not be given the opportunity to seek redress. That doesn't make any 
sense to me.
  Mr. President, there are many things we can and should talk about 
this week, if this is, in fact, Health Week. When the cloture votes are 
held later in the afternoon--and both will fail--then my understanding 
is that we will go to the legislation offered by the Senator from 
Wyoming. It is further my understanding that the leader will what is 
called ``fill the tree''; that is, we will be on that legislation, but 
we will not be able to offer any amendments.
  Let me talk about a couple of things. I came to the floor to talk 
about, during Health Week, the need to deal with something called stem 
cell research. I know that is a controversial issue. But it is one I 
think the American people deserve to have the Congress address and deal 
with. Almost 1 year ago--May 24, 2005, to be exact--the U.S. House of 
Representatives passed their Stem Cell Research Enhancement Act with 
broad bipartisan support. It will expand the number of embryonic stem 
cell lines eligible for Federal funding.
  Back in July of 2005, the majority leader in the Senate made a speech 
and he outlined his support for expanding the number of stem cell lines 
available for research. He pledged to bring the issue to the floor of 
the Senate at some point during this Congress. If this is the week we 
are going to be dealing with health care in the Senate, I encourage the 
majority leader to set aside time for an open and fair debate on stem 
cell research.
  Embryonic stem cell research holds great promise for addressing some 
of the devastating diseases that we face--diabetes, Alzheimer's, 
Parkinson's, heart disease, cancer. To shut off or limit medical 
research is an unbelievable mistake for this country. I, like many 
others, have lost loved ones to disease. When I lost a daughter to 
heart disease, I decided that I would never try to placate one group or 
another by stopping promising research to try to address diseases that 
people all across this planet face.
  Embryonic stem cell research is so unbelievably promising. This is 
not just about some ethereal debate, it is about real people. We have 
about 400,000 embryos frozen at in vitro fertilization clinics, and 
8,000 to 11,000 of them are thrown away every year. Yes, 8,000 to 
11,000 fertilized embryos that are frozen at the IVF clinics are just 
discarded, put in a trash can called ``medical waste.'' Would they not 
better be used to advance medical research? One million babies have 
been born in this world by in vitro fertilization. It started in 
England, called the ``test tube baby.'' One million babies have been 
born.
  When we had a hearing in the Commerce Committee about stem cell 
research, one of the witnesses was asked the question--in fact, I asked 
the question. He opposed in vitro fertilization. He said it should not 
happen.
  I said: Do you think those 1 million people who were born that way 
should not have been born?
  He didn't think they should have been born; it was wrong. There are 1 
million people living among us that are here as a result of in vitro 
fertilization. At the clinics where IVF takes place, the egg and sperm 
are united in a test tube and fertilized in a petri dish for the 
purpose of implanting in a woman's uterus and growing a baby. They 
produce far more embryos than they need. As a result, you have in 
storage about 400,000 embryos--400,000--of which 8,000 to 11,000 each 
year are simply discarded.
  President Bush and others have decided that they shall not be used 
for stem cell research. I am not talking about the stem cell research 
in which a cell is cloned. That is called somatic cell nuclear 
transfer. I will talk about that in a moment. I am talking about 
embryos that are going to be thrown in a waste can and discarded. This 
Administration and too many in this Congress believe these discarded 
embryos cannot and should not ever be used for embryonic stem cell 
research.
  Let me put a face to this issue and hold up this picture. This is a 
young woman I met with recently. This is a picture of Camille Johnson. 
She is in the middle. She plays the clarinet in the middle school band. 
I have met Camille and her mother several times. She is a volunteer 
with the Juvenile Diabetes Research Foundation. She gave me something 
that I keep in my office. This is to describe what this young girl goes 
through with diabetes--and I will describe why I am talking about 
diabetes.
  This young lady has had some very close calls and serious 
hospitalizations with her diabetes. It is very aggressive. She is poked 
with a needle every day at 7 o'clock, 11 o'clock, 5 o'clock, and 8

[[Page 7225]]

o'clock--1,460 pokes with a needle to test her blood every single year. 
She receives 1,095 shots every year. She has to watch her diet every 
day. If she does not keep her diabetes under control, the complications 
are amputation, blindness, kidney failure, heart failure, and death.
  Why do I describe that? Because there is remarkable research going on 
to use stem cells to treat diabetes. The work that has been done in the 
transplant of islets to the pancreas is unbelievably important work. 
Yet we are told that much of this work cannot continue with Federal 
funding. Stem cell research has shown such great promise. For example, 
in spinal cord injuries, stem cell research has allowed disabled rats 
with damaged spinal cords to walk again. It has relieved diabetes and 
Parkinson's disease symptoms in mice. It has developed heart cells, eye 
cells, and nerve cells. I was told of a researcher who described, I 
believe, two dozen mice in which researchers induced severe heart 
attacks. They injected stem cells back into the heart muscles of those 
mice, and a couple of weeks later nearly all of the mice not only 
didn't show severely damaged hearts, which they had after a heart 
attack, but they showed no damage to their hearts at all. So there has 
been unbelievable progress with stem cell research.
  Yet we are told by some that research should not go forward. Let me 
describe for a moment some of the other areas, in addition to embryonic 
stem cell research, that are so controversial: The issue of taking one 
skin cell from one's ear lobe, for example, and putting it into an 
evacuated egg. The skin cell is stimulated to create a blastocyst, or 
cluster of cells, 100 to 200 cells. Those cells can eventually be 
injected back into your own heart muscle. There has been no fertilized 
egg. It is simply your own skin cell that has been stimulated to 
reproduce. Yes, it creates an embryo, but there is no fertilized egg. 
It creates an embryo that will never become a human being.
  We are told by some that is murder; you have destroyed an embryo. No, 
this is about life, about saving lives. Those who want to shut down 
these promising areas of research, in my judgment, are just dead wrong.
  The last campaign I ran for office, the first two television 
commercials that were run by my opponent--the first was about gay 
marriage, that I voted against amending the U.S. Constitution to 
prohibit gay marriage. I can hardly think that George Washington, 
Thomas Jefferson, Ben Franklin, Mason and Madison, as they looked at 
what they had created as a Constitution, would think: What have we 
missed here? We need to put something in about gay marriage. I don't 
think that belongs in the Constitution.
  The first commercial was of two men kissing, with the message you 
would expect from the extremists. The second commercial was about a 
campfire leader sitting around a campfire at night with little kids 
sitting around gathered in front of him. ``Tell us a scary story,'' the 
little kid said. Then the campfire leader said, ``Well, there is a man 
named Byron''--referring to me, I guess--``and he has a plan to implant 
embryos into mommies' uteruses, wombs, and harvest them later for body 
parts.''
  That is an unbelievably ignorant television commercial, but that 
commercial was born of an attempt to distort my position on the issue 
of stem cell research.
  I am not interested in harvesting body parts. I am not interested in 
the discussion about murdering embryos. I am interested in a discussion 
about saving lives and about continuing the kind of promising research 
that exists that might unlock the mysteries of Alzheimer's disease, 
might provide a cure for Parkinson's, for diabetes, or heart disease.
  I am not suggesting there are not some ethical considerations that 
need to be made with respect to how we do it, and I don't suggest we 
should discard those issues. But I am suggesting that a country that 
shuts down that research has made a horrible mistake. My point in 
coming to the floor was, if this is Health Week, then let's talk about 
health issues, about the Indian Health Care Improvement Act that has 
been stranded. Let's talk about that and bring it to the floor and vote 
on it.
  No group of Americans has more difficult health issues to face than 
Native Americans. Let's talk about that on the floor of the Senate.
  Let's vote on the proposition the majority put in the prescription 
drug bill that prohibits the Federal Government from negotiating for 
lower drug prices with the pharmaceutical industry. Let's have that on 
the floor and vote on that. There are half a dozen of those issues. But 
I speak today about stem cell research. If we are going to be serious 
about health care and have a health care week, then we ought to talk 
about this issue.
  The House of Representatives has already passed a bill. The majority 
leader said we would have a bill on the floor of the Senate, and it 
appears at this point that we will head toward the end of this session, 
despite the fact there is bipartisan support for legislation that will 
deal with stem cell research in the appropriate way.
  I understand this is a serious issue. I don't dismiss the concern of 
others, nor do I accept, however, that this is somehow a discussion 
about murder. This is a discussion about saving lives. It is a 
discussion about finding cures to devastating diseases. This country 
ought to be in the lead when it comes to research that can provide 
cures for diseases. Stem cells provide much of that opportunity.
  This young girl, Camille Johnson, deserves to have the opportunity to 
have the very best treatment available. Some of that will come from 
stem cell research. And perhaps we will find a cure for diabetes. 
Perhaps Camille Johnson will not live her life as a diabetic. Maybe 
through stem cell research we will find this cure and one day she won't 
have to take shot after shot to provide her body with sufficient 
insulin for her to live. Let's hope that is the case.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER (Mr. Allard). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, I rise this afternoon to voice my concern 
about the current debate we have begun on the floor of this body. This 
is the fourth time that we in this Chamber have devoted floor time for 
legislation to restrict the rights of those injured by medical 
malpractice. Once again, this bill is being considered without any 
committee consideration whatsoever, without any hearings examining this 
question, and without any attempt to enter into meaningful negotiations 
with the minority over our very legitimate concerns about this 
legislation. So to begin with, we are going to take a week of the 
Senate's time to debate a piece of legislation which has not been 
considered by committee, has had no hearings and no effort to try to 
reach any kind of a compromise position on critical legislation dealing 
with medical malpractice.
  I have always believed that the best public policy comes out of 
consensus, when we work together as Democrats and Republicans, not when 
one side tries to dictate to the other exactly what we are going to 
have to accept or reject. By bringing together a broad coalition of 
people, we can and have on many occasions enacted laws and made sure 
they work as they ought to. Yet, too often these days, we are seeing 
tactics meant to divide rather than to reach any kind of consensus at 
all--tactics, in my view, which have no place in our system of 
governance and which will undoubtedly lead to bad public policy, if any 
public policy at all.
  I come to this medical liability debate with no prejudgments about 
the merits of the claims of those who support this legislation. I have 
never shied away from legal reform when warranted, and most of my 
colleagues

[[Page 7226]]

know this. In the past, I have supported reform to class action 
litigation, securities litigation, asbestos litigation, Y2K litigation, 
and the list goes on. In each and every one of those instances, I 
worked with Republicans and other Democrats to fashion compromise 
consensus legislation. We did it on class action, we did it on 
asbestos, we did it on securities litigation, and I was pleased to do 
it with my colleague from Utah, Bob Bennett, on Y2K legislation. Yet on 
this occasion dealing with medical malpractice, no effort is being made 
at all to reach any consensus. No hearings, no committee work, just 
take it or leave it with legislation that is seriously flawed.
  I have also opposed legal reforms when I believed it was unwarranted, 
such as reforms that effectively inoculate gun manufacturers and 
sellers from essentially any and all liability, and I say that as a 
Senator representing a State with the largest number of gun 
manufacturers in the United States, and one of the largest gun 
manufacturers in the world. They are wonderful people. I respect them 
immensely. But the idea that we would take an entire industry and 
excuse it even from the worst kind of negligence made no sense to me 
whatsoever.
  A recent proposal to shield vaccine manufacturers from 
responsibilities for the safety and effectiveness of their products was 
something I opposed as well, since it made no sense to me whatsoever.
  The two bills we are going to consider this week--one to cap 
noneconomic damages for all medical malpractice cases and one to cap 
damages in cases involving women and children--fall into the latter 
category. These are unwarranted proposals, they are unfair, and they 
are terribly unwise.
  I could quote facts to let my colleagues know how troubled I am about 
these proposals. The point is very simple. The pillars upon which the 
supporters of this legislation rest their arguments are deeply flawed. 
As we heard our colleague from New York, Senator Pat Moynihan, say on 
numerous occasions: Everyone in this Chamber is entitled to their 
opinions, but they are not entitled to their own set of facts.
  The facts here are very clear. The fact is the magnitude of this 
crisis regarding medical malpractice has been drastically overstated. 
The number of physicians in the United States increased from 814,000 to 
885,000 between the years 2000 and 2004, and the number of OB/GYNs 
increased from 40,000 to 42,000 in the same period, while the birth 
rate was in decline in many States.
  What we normally hear is we are losing physicians, people are leaving 
the profession, OB/GYNs are packing up and moving on to other 
professions. The fact is there are more OB/GYNs today than there were 
in the year 2000.
  We should be looking to rein in health care costs, but the supporters 
of this proposal are looking in the wrong place, in my view. The fact 
is, liability premiums account for less than 1 percent of health care 
costs. Let me repeat that. Liability premiums account for less than 1 
percent of health care costs, and yet, when we hear this debate this 
week, we will hear numbers that bear no relationship to the facts.
  The fact is that the number of claims and the value of jury awards 
have not spiked, as some suggest. Between the years 2001 and 2004, the 
number of claims filed actually decreased by almost 14 percent, and the 
amount that defendants and their insurers are paying for medical 
malpractice claims, including jury awards and settlements, has not 
increased in relationship to medical inflation.
  The fact is that those States which have adopted caps have seen 
greater increases in premiums than States without caps. Let me repeat 
that. In those States which adopted caps, they have seen a greater 
increase in premiums than States without caps. Seven of the 10 States 
with the highest premiums already have caps. In 2003, premiums actually 
increased by 17.1 percent for OB/GYNs in States with caps, compared to 
a 16.6-percent increase in States without caps on these awards. In 
2004, the average premium for physicians in States with caps was 
$46,733. The average premium in States without caps was $42,563. So, if 
anything, the evidence suggests the caps on patient damages actually 
correspond to higher insurance premiums for doctors.
  Again, these numbers are high. Premiums that are $46,000 or $42,000 
are extremely large. But if we are going to address the problem, then 
we ought to address the cause of why these premiums are so high.
  I could continue to quote a number of these facts to underscore my 
point, but I think the point is very simple. Again, the facts which the 
supporters of this bill rest their arguments on are flawed. Again, they 
are entitled to their opinions but not their facts.
  The number of practicing physicians is on the rise. The number of 
medical malpractice claims is actually falling. The amount of awards to 
victims actually lags behind inflation. Malpractice premiums in States 
with caps are higher than in States without caps. Those are the facts. 
And based on this evidence, we are being asked to limit the rights of 
injured patients. The facts fail utterly to dictate such a conclusion, 
in this Senator's opinion.
  But if neither the number of claims nor the amount of malpractice 
awards can explain rising premiums, then what is the explanation? What 
is going on? According to several analysts, the increase in premiums 
does, in fact, correlate with fluctuations in the stock market and 
interest rates.
  One recent study showed premiums closely tracked insurers' economic 
cycles. During good economic times, insurers slashed premiums to 
attract as much business as possible. This is because every new policy 
brings in an additional so-called float, money to invest in a booming 
market. However, when the market turns, the investment returns are 
weak, as has happened in the last few years, and insurers raise their 
rates or, in some cases, leave the market altogether. When this 
happens, of course, the result is often a crisis in the availability 
and affordability of insurance. This is what we have seen over the past 
several years. In fact, with markets showing some improvement, the 
evidence suggests today that premium increases are slowing 
dramatically.
  The idea of placing caps on noneconomic damages is also unfair. One 
of the bills we are considering today seeks to limit the legal rights 
of a very specific segment of our society, and that is women and 
newborns.
  It is important to remember that this bill is going to affect those 
who have actually been injured by malpractice. This is not just anyone 
who has a bad outcome, but malpractice. An individual has been accused 
of malpractice. A jury has already decided that they are eligible to 
collect noneconomic damages, that malpractice has occurred. Somebody 
has messed up terribly and caused a woman or a child to suffer. That 
conclusion has been reached. Now we are saying we are going to put a 
cap on that damage and limit it only to economic damages. We are 
essentially telling women and infants that their injuries and the 
suffering they experience as a result are not worth as much as the 
injuries and suffering of other people in this country.
  We are going to single out women and children for special 
consideration, and that is to say: You have been damaged because of 
malpractice, and here we are going to make it almost impossible for you 
to collect any damage beyond economic damages.
  Furthermore, these bills do not take into account the extent of 
injuries and the costs thereof. As a result, they will hurt the most 
seriously injured, those who might receive a noneconomic damage of more 
than $250,000 were it not for this arbitrary cap.
  Finally, this legislation is terribly unwise, in my view. Reasonable 
litigation provides accountability. When health care providers make 
mistakes, they should be held accountable. Placing a cap on noneconomic 
damages simply removes the incentive for the health care system to 
improve quality and patient safety, and it does so with no guarantee 
that there will be any reduction in doctors' medical malpractice 
premiums. In fact, time and

[[Page 7227]]

time again, insurance companies have refused to commit to lowering 
premiums, even if a cap is enacted.
  Last year, for instance, a spokesman for the American Insurance 
Association said:

       We have not promised price reductions with tort reform. Six 
     months after Texas enacted a cap like the one we are debating 
     here today, one insurer in that State tried to raise premiums 
     by 19 percent, arguing that noneconomic damages are a small 
     percentage of total losses paid. Capping noneconomic damages 
     would show lost savings of 1 percent or less.

  I just have a few more comments to make on this issue. I realize I am 
extending my time. I see my colleague from Kentucky and my colleague 
from Tennessee are here. Let me just wrap up, Mr. President, and take a 
minute, if I can.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. There are other things we need to be doing. Information 
technology in health care would be a major step forward. I have 
supported almost every major tort reform piece of legislation here in 
the last 10 years. I have done it on securities litigation reform. I 
did it on class action. I was willing to do it on asbestos and on Y2K 
legislation. In all of those cases, we worked out compromises to make 
sure that what we were doing would make sense.
  This bill makes no sense whatsoever. The facts show that there is no 
justification for moving in the direction we would be with this piece 
of legislation. I urge my colleagues to reject this proposal and come 
back with a piece of legislation that really would make a difference.
  If we really want to reduce these kinds of costs, there are steps 
that can be taken to allow us to do it. But with this bill, the number 
of doctors is increasing, the number of OB/GYNs is increasing. States 
with caps are watching premium costs go up, and States without caps are 
watching premium costs go down--the exact reverse of what we are 
claiming we would accomplish with this legislation. The details of my 
statement make that clear.
  Again, you are entitled to your opinion but not facts. The fact is, 
we are going in the wrong direction with this bill. I urge my 
colleagues to step back, allow for some hearings to go forward, allow 
for people to sit down and look into things as we did with class 
action, as we did with Y2K and asbestos litigation. With those bills, 
we put together and produced good legislation. This bill is nothing 
like that and does not deserve to be on the floor without that kind of 
work.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  Who seeks recognition?
  Mr. ALEXANDER. Mr. President, I ask unanimous consent to speak as in 
morning business for 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Alexander and Mr. Akaka are printed in today's 
Record under ``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SANTORUM. Mr. President, I am here today to stand in strong 
support of S. 22 and S. 23. I do so as a Senator from Pennsylvania 
representing a State that has been racked by the consequences of having 
a tort liability system that is simply out of balance, out of whack. 
That imbalance is causing real tragedies to occur on a daily basis in 
the Commonwealth. People are not getting access to the kind of care 
they deserve because, as I will lay out in great detail, physicians are 
leaving the State and hospitals are closing down because of the cost of 
awards, in particular in areas that serve high-risk patients in some of 
our communities where there are underserved populations, whether they 
are inner city or very rural. Patients are not getting access, whether 
it is to neurosurgery or high-risk obstetrics or orthopedic care and 
other types of high-risk specialties, and physicians are leaving areas 
in our State, both rural and urban, because of this liability crisis.
  I had hoped that the Commonwealth itself and our State legislature 
would have responded to this problem. They have tried on a couple of 
occasions, and the Governor has vetoed legislation to make that happen, 
and so we are here today to try to solve this problem on a national 
level.
  I believe that while Pennsylvania is severely impacted, probably as 
much as any State in the country, this is a problem which has national 
impact. It impacts the Medicare and Medicaid system which this Congress 
and which the Federal Government pay for. So I do believe it is 
appropriate for us to consider it.
  I wish to make sure that folks understand what we are trying to 
accomplish. I have had people come to me on more than one occasion and 
ask questions about why we are trying to limit people's right to sue. 
No. 1, we are not limiting anybody's right to sue. People can sue a 
physician or a hospital or a drug company or anybody else in the health 
care arena. They can sue as many times as they want and as often as 
they want and for as much as they want. The only thing we are 
attempting to do as far as a limitation in this bill is to limit the 
award in one category of damages.
  There is, of course, more than one category of damages allowed in 
most liability suits.
  Certainly there are economic damages allowed for income loss, so that 
if you lost income as a result of the injury you incurred, you have 
lost the ability to earn future income or some portion of future 
income, that is fully recoverable. If you have medical bills in the 
past or going forward--for example, let's say you were left without the 
use of an arm or maybe you ended up in a wheelchair as a result of 
medical malfeasance on the part of a provider--there is no limit on the 
amount of medical recovery you could have. Nothing in the bills we are 
looking at limit recovery in those areas whatsoever. There are also 
punitive damages that are available. Punitive damages are damages 
against someone who does something malicious or willful to harm you in 
the conduct of providing care, and there is no limit whatsoever on any 
punitive damages in this legislation.
  All we attempt to do is take one category of damages, which is 
loosely known as pain and suffering, and try to put a cap on that; we 
try to quantify that. It is very hard to quantify it in the first 
place, but we are just trying to say that we want to put a cap on that. 
Why? Why would you want to put a cap on that? Because in some cases, 
you look at the harm that has been done to somebody and you say: Wow, I 
can't even think about how much pain or how much suffering or how that 
person's life has changed, and I would like to help. Well, the reason 
we need to put some sort of limitation on it is in order to strike a 
balance between the desire of our fellow citizens, through a jury or 
judge, to compensate someone for the injury they had in exchange for 
the costs associated to our society and to the medical system, which 
results in other people not getting care.
  We can go to a recent conference I attended in Philadelphia where it 
was relayed to me that we have had I think it is nine maternity wards 
in the city of Philadelphia close down over the past few years--nine--
one most recently in northeast Philadelphia and the last one in the 
most densely populated area of Philadelphia, an urban population, where 
the OB ward closed down. So if you live in northeast Philly, which is 
again the largest area population-wise in the city of Philadelphia, 
there are no hospitals to deliver babies. You have to come into the 
Center City area or the neighboring county to get obstetrical care. You 
have consequences. You have consequences of high-risk pregnancies where 
people do not get to the delivery room on time and mothers and children 
are harmed.
  One of the reasons I have introduced S. 23, the bill we are going to 
have a cloture vote on later today in order to proceed, is, in fact, to 
say that this is of crisis proportion in my State, and even if we can't 
do a broader bill, let's try to do a narrower bill that deals with the 
issue of mothers and children to make sure there is care for those 
particularly vulnerable in our population.
  I had an ER doctor in suburban Philadelphia tell me that just over 
the

[[Page 7228]]

last couple of years, they have been able to document I think seven 
people who have shown up in emergency rooms in suburban Philadelphia 
with head traumas who were not treated because there were no 
neurosurgeons available on call. There just was no one to come. As a 
result, seven people are now dead who, had there been someone on call 
and available, without question would have lived. You ask the question: 
Who do the family members of those deceased people sue? The answer is 
they can't sue anybody. They get no recovery. They get nothing. Why? 
Because we have a system that rewards a very few--maybe justifiably. I 
am not arguing that their award isn't justifiable. I would probably 
argue for an enormous amount of money, depending on what the injury is. 
The question is, How do we balance that person's right to be 
compensated with another person's right in the future to get health 
care?
  That is what this attempts to do: balance the rights of those who are 
injured with the rights of those who will be injured if we don't limit 
those first rights. We see that happening every day in Pennsylvania, 
and that is one of the reasons I feel so passionate about bringing this 
legislation to the floor and trying to attempt to do something here on 
the floor of the U.S. Senate.
  What we do in trying to limit rights is actually different from what 
we have done in the past here. We try to limit the ability to recover--
not the right to sue but the ability to recover--in some small way. It 
most cases, it will be a small way.
  What this does is it provides certainty in the insurance market. 
Right now, you have a category of damages called pain and suffering. I 
think if you asked 100 people how much suffering--if you took a case 
and said: How much should this person be awarded for this much 
suffering, would you get 100 different answers. It is hard to insure 
against those 100 different answers about what a judge or a jury is 
going to do. So by putting a limit here, you are then able to quantify 
for insurance purposes and allow insurance companies to offer 
reasonable insurance packages for physicians and hospitals, and you put 
physicians in--this is also important--you put physicians in a position 
where they are not simply practicing defensive medicine, which drives 
up the cost of health care precipitously.
  The cap we are talking about here is a $250,000 cap on a physician, a 
$250,000 cap additionally on the health care provider, on the 
institution where the care is provided. If there is more than one 
institution, it is a total cap of $500,000, so two or more institutions 
could combine, for a total of $500,000. So it is a $750,000 total cap, 
which is three times what we voted on here last session of Congress.
  So this is a much higher cap. I have said in the past, both on the 
floor and around my State, that I thought the $250,000 cap was a bit 
low, and I feel more comfortable with this cap, and it allows 
flexibility for the States to do something different. This just takes 
care of situations where there aren't any caps in place by the State.
  So I think we have a situation where we have a bill that puts in a 
reasonable limitation on damages. Even though I certainly can make the 
argument that there may be cases where this would be a difficult limit, 
it is a balance between limiting somebody's recovery and making sure 
that by doing so, you have access to care for other people who will be 
harmed if we don't limit that recovery.
  I want to talk about the situation specifically in Pennsylvania. This 
is a tragic situation that we have seen evolve over the past several 
years where the liability costs have just gone through the roof. We 
have a situation where, if you look between 1999 and 2005, the 20 most 
populous States saw a 15-percent to 35-percent increase in the number 
of Medicare physicians. In Pennsylvania we saw a 10-percent decline in 
the number of physicians available to treat Medicare patients.
  The number of doctors in training who stayed in Pennsylvania? In 
Pennsylvania we are very blessed with a lot of great medical schools. 
We train a lot of physicians and train a lot of health care workers 
generally in Philadelphia and Pittsburgh and in between. Twelve years 
ago, in 1994, we had a rate of about 50 percent of all the physicians 
we trained in Pennsylvania stayed in Pennsylvania. Two years ago it was 
7.8 percent. We went from 13th in the country, during this time, of the 
percentage of physicians under the age of 35--we were 13th in the 
country in the percentage of physicians under the age of 35. Today we 
are 45th in the country in the percentage of physicians under the age 
of 35. We have older and older doctors; fewer and fewer are staying. 
This is a crisis. It is horrible now. It is only going to get worse if 
we do not do something about it.
  Why? If you look at it, the payouts have skyrocketed from $180 
million in 1991 to $450 million 2 years ago. The average liability 
payout per physician--the average is $6,000 nationwide. It is $16,000 
in Pennsylvania, almost three times as much. This is a serious problem 
in our State.
  We are looking to Washington, DC, to help. They are saying just in a 
couple of years we could have a shortfall of nearly 10,000 physicians 
in the Commonwealth of Pennsylvania. So this is a pressing problem, one 
I hope we can get to.
  Just allow us to bring up the bill, allow us to debate. Here we are, 
the greatest deliberative body in the world. We have a huge problem in 
my State, and I suggest we have others stand up and talk about the 
problem in their States. If you don't like the solution we have put 
forward, then let's have a debate. Let's have some amendments. Let's 
talk about how we can change the bill around to move it forward. But 
not allowing us to bring it up is not a reasonable alternative.
  We have heard from folks in our State. This is a petition. We have 
gotten a whole bunch. I just wanted to reproduce one of the hundreds of 
petitions we have received, particularly focused on what is going on 
with our obstetrical care. These are citizens, in this case, from West 
Reading, PA, who said:

       Every day OBGYNs are closing doors because of America's 
     medical liability crisis. Is yours next? We the undersigned 
     are in favor of keeping women's health care availability and 
     strongly urge Congress to enact meaningful legislative 
     relief.

  That is what we are trying to accomplish today. It is amazing, the 
effect of this on--I always say physicians, but it is health care 
professionals, not just physicians. ``One-third of residents''--
  This is from the Department of Health Policy and Management in the 
Harvard School of Public Health. They did some surveys and talked to 
physicians out in our State. It says:

       One-third of residents in their final or next to last year 
     of residency planned to leave Pennsylvania because of the 
     lack of availability of affordable malpractice coverage. . . 
     . Those who are about to leave Pennsylvania named malpractice 
     cost as the primary reason three times more often than any 
     other factor.

  I met with a woman graduating from the University of Pennsylvania in 
thoracic surgery. She had a decision to make: to come to Washington DC, 
or stay in Philadelphia. She is from Philadelphia; her family is there. 
She wants to stay. The cost of malpractice insurance in Washington is 
$4,000 for her specialty. In Philadelphia, $40,000, 10 times the 
amount, plus the complexity of not being able to practice the medicine 
she wants to practice.

       Seventy-one percent of residency program directors reported 
     a decrease in retention of residents in the state since the 
     onset of the professional liability crisis. For some programs 
     the decreases were very large.
       An environment of mounting liability costs in Pennsylvania 
     appears to have dissuaded substantial numbers of residents in 
     high risk specialties from locating their clinical practices 
     in the state.

  This is a serious problem. I am going to talk about it some more. We 
probably are not going to be successful today, but I will be back on 
the floor, not just today but in the future to continue to talk about 
this critical crisis that we have in our commonwealth. It is not just 
about making sure that we have reasonable malpractice rates. It is 
about access to care. It is about people who are going to be hurt and 
are going to die because we have not put this

[[Page 7229]]

medical liability system in balance. We need to do so and it would be a 
great start if the Senate would allow us to proceed to that debate 
today.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I commend the Senator from Pennsylvania 
for his observations, not only about the state of medical care access 
in Pennsylvania, but across the Nation. I would like to make some 
observations about the situation in Kentucky and across the Nation as 
well.
  I am obviously here to support the Medical Care Access Protection 
Act. On several occasions in recent years this body has attempted to 
debate commonsense reforms to our medical liability system--a system 
that we all know is increasing health care costs and limiting patients' 
access to care.
  Unfortunately, the minority party's obsession with obstructionism has 
prevented this body from even considering medical liability reform. But 
the problem of patients not getting the care they need is simply not 
going to go away on its own. The Senate needs to act, and act now.
  Passing the Medical Care Access Protection Act would leave doctors 
free to go where the patients are, not just where the lawyers aren't. 
Let me turn briefly to the Commonwealth of Kentucky.
  Like 20 other States across our Nation, we, in Kentucky, are facing a 
medical liability crisis. In past years, I have shared stories of 
doctors who left Kentucky, of hospitals that have closed their 
maternity wards, and of women who have been denied access to care 
because their doctors could no longer afford the medical liability 
premiums.
  I wish I could tell my colleagues that I was out of such stories; 
that the problem had fixed itself. Unfortunately, that is not the case. 
The minority has not allowed this body to act, and the problem has not 
gone away. So today I would like to share a story that ran earlier this 
year in my hometown newspaper, the Louisville Courier-Journal, back on 
January 29.

       Rashelle Perryman's first two babies were born at 
     Crittenden County Hospital in Marion, KY, about 10 minutes 
     from her home. But her third child, due in June, is to be 
     born in Madisonville, 40 miles away in Hopkins County, 
     because rising malpractice insurance rates caused doctors at 
     the Crittenden County Hospital to stop delivering babies last 
     year.
       That forced the hospital to drop obstetrical services and 
     Ms. Perryman to find a new doctor.
       ``I don't like it at all,'' she said about having to give 
     birth in another county. She's a nurse at Crittenden County 
     Hospital and its former obstetrics supervisor.

  So she knows a good bit about the subject matter.

       With Perryman's first two deliveries, ``I knew everybody 
     here in the hospital, and I was comfortable,'' she said. 
     ``And now I am going somewhere where I don't know anybody, or 
     how anything's done.''

  Ms. Perryman will have to travel a long 40 miles to deliver her 
child. Just to put her plight in perspective, 40 miles is about the 
same distance from the Capitol to downtown Baltimore. I know we will 
all hope for a safe delivery for Ms. Perryman, but what if there are 
complications along the way? Wouldn't it be better for both Ms. 
Perryman and her baby if they could still go to their local hospital, 
rather than driving 40 miles down the road?
  Would any Member of the Senate want his wife, or his or her daughter, 
to have to drive as far as Baltimore in a similar circumstance?
  Unfortunately, this is not an isolated problem within this one 
Kentucky community. Our Lady of Bellefonte in Ashland, KY, and Knox 
County Hospital in eastern Kentucky have also stopped delivering 
babies. They are not delivering babies anymore. Patients in west 
Kentucky who need the services of an emergency neurosurgeon frequently 
must be transferred to St. Louis or Nashville because there are not 
enough neurosurgeons to staff the hospitals in Paducah around the 
clock.
  From 2000 to 2004, the number of practicing OB/GYNs in the country 
fell from 504 to 473. Among those OB/GYNs who have remained in the 
State, fewer and fewer of them are still willing to deliver babies. 
Even among those who are staying in the State, fewer of them are 
willing to deliver babies.
  The American College of Obstetrics and Gynecology report that 18 
percent of Kentucky OB/GYNs have stopped delivering babies entirely. 
Nearly one-third of OB/GYNs, 31 percent, have limited the number of 
``high-risk'' expectant mothers they will see for liability reasons.
  So even among those who are still willing to deliver babies, they are 
sort of preselecting the mothers based upon the riskiness of the 
procedure and parceling out those who are more risky to someone else or 
some other community or whoever will accept the liability potential.
  The Kentucky Medical Association reviewed State and hospital records 
and found that only 426 doctors in Kentucky delivered babies last year. 
That is down 79 doctors from 1 year before.
  Let me say that again. We have in Kentucky gone down to 426 doctors 
who delivered babies last year, down 79 from the year before.
  As I have noted in the past, 66 of Kentucky's 120 counties have no 
OB/GYNs at all. The red counties on the map, all across my State, from 
east to far west--the red counties have no OB/GYNs at all; 66 out of 
120 counties. Over half of our counties have no OB/GYNs at all.
  What does this mean to the patients? I think it is rather obvious. It 
means that patients such as Ms. Perryman, on one of the most 
challenging but important days of her life, will need to travel far 
from home to deliver her baby.
  This problem extends far beyond Kentucky's borders. In his State of 
the Union Address this year, President Bush noted that 1,500 American 
counties have no OB/GYN. So these 66 counties in Kentucky are not 
unique; 1,500 counties across America don't have a single OB/GYN.
  As the map next to me shows, the American Medical Association reports 
that 21 States are now facing a full-blown medical liability crisis.
  The red States have a full-blown medical liability crisis--21 of 
them. A few years ago, there were just 12. You will notice Texas, Mr. 
President? Texas is an interesting State to note. It is getting itself 
out of the crisis stage, heading in the direction of being a State not 
in crisis, as a direct result of legislation similar to what we are 
suggesting be enacted on the Federal level.
  So we know the Texas reforms work because we see Texas now moving 
from a State in crisis to a State that is effectively reforming and 
basically halting the crisis.
  An example of a State with a serious problem still is Arizona. Some 
of my colleagues might recall the story of one Arizonan, Melinda 
Sallard, from a few years ago. In 2002, the administrators at Copper 
Queen Community Hospital College in Brisbee, AZ, were forced to close 
their maternity ward because their doctors' insurance premiums had 
risen by 500 percent; 500 percent. A few months later, Melinda awoke at 
2 o'clock in the morning with sharp labor pains. Since her local 
hospital stopped delivering babies because of the medical liability 
crisis, Melinda and her husband were faced with a 45-mile drive to 
Sierra Vista in order to reach the nearest hospital with a maternity 
ward.
  As many of us who are parents know, babies don't always wait for the 
hospital, particularly when that hospital is almost an hour away.
  Melinda gave birth to her daughter in a car on a desert highway 
leading to Sierra Vista.
  When the child was born, she wasn't breathing. Her levelheaded mother 
cleared the child's mouth and performed CPR. After resuscitating the 
infant, Melinda wrapped her in a sweater, and the new family completed 
the journey to Sierra Vista.
  Thankfully, both mother and daughter survived. However, it is clearly 
unacceptable that expectant mothers should be forced to drive past a 
perfectly good hospital and continue on 45 miles through the desert to 
deliver a child.
  We have here a picture of the mother and daughter, and in that 
particular instance, because of a particularly alert mother, we were 
able to avert a crisis.
  There are commonsense reforms the Senate can adopt that will lower 
medical liability premiums and allow doctors to continue their 
lifesaving work.

[[Page 7230]]

In past years, the Senate has considered legislation modeled after the 
successful MICRA reforms out in California that have contained medical 
liability premiums for more than 25 years. I have supported those 
efforts, but we are taking a different approach this year and we are 
modeling this legislation offered by Senators Santorum, Ensign, and 
Gregg on the Texas reforms to which I referred a few moments ago. The 
Texas reforms are a little more generous, and they also are clearly 
working to get the right result.
  It is important to remember that under any of this legislation, 
patients would be allowed to recover 100 percent of their economic 
damages. This can include hospital bills, lost wages, therapy, and 
rehabilitation costs, and a wide variety of additional expenses a 
victim might incur.
  In an attempt to reach a compromise on the contentious issue of non-
economic damages, the Medical Care Access Act includes, as I said, 
Texas's tiered cap on non-economic damages that could allow a patient 
to recover as much as three-quarters of a million dollars. That is 
three times the amount of non-economic damages that was available under 
legislation we previously considered here in this Senate.
  Our colleagues across the aisle have indicated they would not 
consider legislation that would limit non-economic damages at $250,000. 
This bill does not have that limitation. Hopefully, a limitation on 
non-economic damages alone of three-quarters of a million dollars will 
be more acceptable.
  This legislation also includes important reforms, such as ``fair 
share liability,'' limits on lawyers' fees, and collateral source 
reforms that have been a part of previous proposals here in the Senate.
  This problem is not going to go away on its own. The Senate has an 
opportunity to act. I hope we will, in fact, vote cloture and get to 
this legislation. If there are amendments to be offered, fine. Let us 
have votes and move in the direction of addressing this serious 
national health care problem.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, this legislation, S. 22, is not a serious 
attempt to address a significant problem being faced by physicians in 
some States. It is the product of a party caucus rather than the 
bipartisan deliberations of a Senate committee. It was designed to 
score political points, not to achieve the bipartisan consensus which 
is needed to enact major legislation. In fact, the legislative language 
was not even available for review until late last week. For these 
reasons, it does not deserve to be taken seriously by the Senate.
  We must reject the simplistic and ineffective responses proposed by 
those who contend that the only way to help doctors is to further hurt 
seriously injured patients. Unfortunately, as we saw in the Patients' 
Bill of Rights debate, the Bush administration and congressional 
Republicans are again advocating a policy which will benefit neither 
doctors nor patients, only insurance companies. Caps on compensatory 
damages and other extreme ``tort reforms'' are not only unfair to the 
victims of malpractice, they do not result in a reduction of 
malpractice insurance premiums.
  Not only does this legislation fail to do what it claims, but it 
would do many things that its authors are attempting to conceal. In 
reality, this legislation is designed to shield much of the health care 
industry from basic accountability for the care it provides. While 
those across the aisle like to talk about doctors, the real 
beneficiaries will be insurance companies and large health care 
corporations. This amendment would enrich them at the expense of the 
most seriously injured patients; men, women and children whose entire 
lives have been devastated by medical neglect and abuse.
  S. 22 would drastically limit the financial responsibility of the 
health care industry to compensate injured patients for the harm they 
have suffered. This legislation is extremely broad in its scope. It 
defines a ``health care liability claim'' as any claim ``based upon the 
provision of, use of, or payment for--or the failure to provide, use, 
or pay for--health care services.''
  It is attempting to use the sympathetic family doctor as a Trojan 
horse concealing an enormous array of special legal privileges for 
every corporation which provides a health care service, or insures the 
payment of a medical bill. For example, this proposal would shield HMOs 
and health insurers that refuse to provide needed care. Less 
accountability will never lead to better health care.
  Every provision of this bill is carefully designed to take existing 
rights away from those who have been harmed by medical neglect and 
corporate greed.
  This legislation would deprive seriously injured patients of the 
right to recover fair compensation for their injuries by placing an 
arbitrary cap on how much they can receive for non-economic loss, that 
is for the very real pain and suffering these victims experience every 
day. This cap only serves to hurt those patients who have suffered the 
most severe, life-altering injuries and who have proven their cases in 
court.
  They are the paralyzed, the brain-injured, and the blinded. They are 
the ones who have lost limbs, organs, reproductive capacity, and in 
some cases even years of life. These are life-altering conditions which 
deprive a person of the ability to engage in many of the normal 
activities of day to day living. It would be terribly wrong to take 
their rights away. The Bush administration talks about deterring 
frivolous cases, but caps by their nature apply only to the most 
serious cases which have been proven in court.
  A person with a severe injury is not made whole merely by receiving 
reimbursement for medical bills and lost wages. Noneconomic damages 
compensate victims for the very real loss in quality of life that 
results from a serious, permanent injury. It is absurd to suggest that 
$250,000 is fair compensation for a person paralyzed for life.
  The sponsors of this bill claim that they have increased the cap from 
$250,000 to $750,000. But that claim is very misleading. The $250,000 
limit would still apply to the overwhelming majority of malpractice 
victims, no matter how severe their injuries. The $750,000 limit would 
apply only to the small number of cases in which three different 
defendants--one doctor and two health care institutions--were all 
responsible for the victim's injury. It would not even apply in cases 
where three doctors all committed malpractice. In reality, nothing has 
changed from prior Republican bills. Nearly all victims would still be 
prohibited from receiving more than $250,000 for their injuries.
  Caps are totally arbitrary. They do not adjust the amount of the 
compensation ceiling with either the seriousness of the injury, or with 
the length of years that the victim must endure the resulting 
disability. Someone with a less serious injury can be fully compensated 
without reaching the cap.
  However, a patient with severe, permanent injuries is prevented by 
the cap from receiving full compensation for their more serious 
injuries. Is it fair to apply the same limit on compensation to a 
person who is confined to a wheelchair for life that is applied to 
someone with a temporary leg injury?
  Caps discriminate against younger victims. A young person with a 
severe injury such as paralysis must endure it for many more years than 
an older person with the same injury. Yet that young person is 
prohibited from receiving greater compensation for the many more years 
he will be disabled. Is that fair?
  Caps on noneconomic damages discriminate against women, children, 
minorities, and low income workers. These groups do not receive large 
economic damages attributable to lost earning capacity.
  Women who are homemakers and caregivers for their families sustain no 
lost wages when they are injured, so they only receive minimal economic 
damages. Should a woman working in the home receive less compensation 
for the same injury than a woman working outside the home? Is that 
just?

[[Page 7231]]

  A seriously injured child may be confined to his or her home for 
years of painful recuperation, but that child has no lost wages. Should 
he get less compensation than an adult with a similar injury? Is that 
fair?
  Noneconomic damages--compensation for lost quality of life--is 
particularly important to these vulnerable populations.
  In addition to imposing caps, this legislation would place other 
major restrictions on seriously injured patients seeking to recover 
fair compensation. At every stage of the judicial process, it would 
change long-established judicial rules to disadvantage patients and 
shield defendants from the consequences of their actions.
  First , it would abolish joint and several liability for all damages. 
This means the most seriously injured people may never receive all of 
the compensation that the court has awarded to them. They may not even 
receive full payment for their lost wages and medical bills. Under this 
provision, health care providers whose misconduct contributed to the 
patient's injuries will in many cases be able to escape responsibility 
for paying full compensation to that patient.
  Second, the bias in the legislation could not be clearer. It would 
preempt State laws that allow fair treatment for injured patients, but 
would allow State laws to be enacted which contained greater 
restrictions on patients' rights than the proposed Federal law. This 
one-way preemption contained in section 11(c) shows how result-oriented 
the legislation really is. It is not about fairness or balance. It is 
about protecting defendants.
  Third, the amendment preempts state statutes of limitation, cutting 
back the time allowed by many States for a patient to file suit against 
the health care provider who injured him. Under the legislation, the 
statute of limitations can expire before the injured patient even knows 
that it was malpractice which caused his or her injury.
  Fourth, it places severe limitations on when an injured patient can 
receive punitive damages, and how much punitive damages the victim can 
recover. Under the bill, punitive damages can only be awarded if the 
defendant acted ``with malicious intent to injure'' or ``deliberately 
failed to avoid unnecessary injury.'' This is far more restrictive than 
current law. It entirely prohibits punitive damages for ``reckless'' 
and ``wanton'' misconduct, which the overwhelming majority of States 
allow. In the very small number of cases where punitive damages would 
still be allowed, the bill would cap them at twice the amount of 
economic damages, no matter how egregious the defendant's conduct and 
no matter how large its assets.
  Fifth, it imposes unprecedented limits on the amount of the 
contingent fee which a client and his or her attorney can agree to--
limiting it to 15 percent of most of the recoveries. This will make it 
more difficult for injured patients to retain the attorney of their 
choice in cases that involve complex legal issues. It can have the 
effect of denying them their day in court. Again the provision is one-
sided, because it places no limit on how much the health care provider 
can spend defending the case.
  If we were to arbitrarily restrict the rights of seriously injured 
patients as the sponsors of this legislation propose, what benefits 
would result? Certainly less accountability for health care providers 
will never improve the quality of health care. It will not even result 
in less costly care. The cost of medical malpractice premiums 
constitutes less than two-thirds of 1 percent, 0.66 percent, of the 
Nation's health care expenditures each year. For example, in 2004, 
health care costs totaled $1.88 trillion, while the total cost of all 
medical malpractice insurance premiums was $11.4 billion. Malpractice 
premiums are not the cause of the high rate of medical inflation. This 
bill will not make health care more affordable.
  The White House and other supporters of caps have argued that 
restricting an injured patient's right to recover fair compensation 
will reduce malpractice premiums. But, there is scant evidence to 
support their claim. In fact, there is substantial evidence to refute 
it.
  Between 2000 and 2003, there were dramatic increases in the cost of 
medical malpractice insurance in States that already had damage caps 
and other restrictive tort reforms on the statute books, as well as in 
States that did not. No substantial increase in the number or size of 
malpractice judgments suddenly occurred which would have justified the 
enormous increase in premiums that many doctors were being forced to 
pay. Now rates have stabilized, again both in States with and States 
without damage caps.
  Comprehensive national studies show that medical malpractice premiums 
are not significantly lower on average in States that have enacted 
damage caps and other restrictions on patient rights than in States 
without these restrictions. Insurance companies are merely pocketing 
the dollars which patients no longer receive when ``tort reform'' is 
enacted.
  Let's look at the facts. Slightly more than half of the States have a 
cap on medical malpractice damages. Many of them have had those 
statutes for a substantial number of years. The other half of States do 
not have a cap on malpractice damages. The best evidence of whether 
such caps affect the cost of malpractice insurance is to compare the 
rates in those two groups of States. Based on data from the Medical 
Liability Monitor on all 50 States, the average liability premium in 
2005 for doctors practicing in States without caps on malpractice 
damages $45,719--was actually lower than the average premium for 
doctors practicing in States with caps, $51,405. There are many reasons 
why insurance rates vary substantially from State to State. This data 
demonstrates that it is not a State's tort reform laws which determine 
the rates. Caps do not make a significant difference in the malpractice 
premiums which doctors pay. This is borne out by a comparison of 
premium levels for a range of medical specialties.
  The average liability premium in 2005 for doctors practicing internal 
medicine was more--18.7 percent more--for doctors in States with caps 
on malpractice damages--$16,212--than in States without caps on 
damages--$13,658. Internists actually pay more for malpractice 
insurance in States that have caps.
  The average liability premium in 2005 for general surgeons was more--
19.4 percent more--for doctors in States with caps--$57,662--than 
States without caps--$48,267. Surgeons are paying more for malpractice 
insurance in the States that have caps.
  The average liability premium for OB/GYN physicians in 2005 in States 
with caps--$80,341--was also more than for doctors in States without 
caps--$75,233. OB/GYNs in States with caps paid slightly more--7 
percent more--than in States without caps.
  Clearly, a State's tort laws do not determine that State's medical 
malpractice insurance rates.
  This evidence demonstrates that capping malpractice damages does not 
benefit the doctors it purports to help. It only helps the insurance 
companies earn even bigger profits. As Business Week Magazine concluded 
after reviewing the data at the height of the malpractice rate crisis 
``the statistical case for caps is flimsy.''
  In 2003, Weiss Ratings, Inc., a nationally recognized financial 
analyst, conducted an in-depth examination of the impact of capping 
damages in medical malpractice cases. Their conclusions sharply 
contradict the assumptions on which this legislation is based. Weiss 
found that capping damages does reduce the amount of money that 
malpractice insurance companies pay out to injured patients. However, 
those savings are not passed on to doctors in lower premiums.
  The Weiss Report, stated:

       Since the insurers in the states with caps reaped the 
     benefit of lower medical malpractice payouts, one would 
     expect that they would reduce the premiums they charged 
     doctors. At the very minimum, they should have been able to 
     slow down the premium increases. Surprisingly, the data show 
     they did precisely the opposite.

  Between 1991 and 2002, the Weiss analysis shows that premiums rose by 
substantially more in the States with

[[Page 7232]]

damage caps than in the States without caps. The 12-year increase in 
the median annual premium was 48.2 percent in the States that had caps, 
and only 35.9 percent in the States that had no caps. In the words of 
the report:

       On average, doctors in States with caps actually suffered a 
     significantly larger increase than doctors in states without 
     caps . . . In short, the results clearly invalidate the 
     expectations of cap proponents.

  Since malpractice premiums are not significantly affected by the 
imposition of caps on recovery, it stands to reason that the 
availability of physicians does not differ between States that have 
caps and States that do not. AMA data shows that there are 283 
physicians per 100,000 residents in States that do not have medical 
malpractice caps and 249 physicians per 100,000 residents in States 
with caps. Clearly there is no correlation.
  If a Federal cap on noneconomic compensatory damages were to pass, it 
would sacrifice fair compensation for injured patients in a vain 
attempt to reduce medical malpractice premiums. Doctors will not get 
the relief they are seeking. Only the insurance companies, which 
created the problem, will benefit.
  Insurance industry practices were responsible for the sudden dramatic 
premium increases which occurred in some States between 2000 and 2003. 
The explanation for these premium spikes can be found not in 
legislative halls or in courtrooms, but in the boardrooms of the 
insurance companies themselves.
  There were substantial increases in a number of insurance lines, not 
just medical malpractice, during that period. Insurers make much of 
their money from investment income. Interest earned on premium dollars 
is particularly important in medical malpractice insurance because 
there is a much longer period of time between receipt of the premium 
and payment of the claim than in most lines of casualty insurance. The 
industry creates a ``malpractice crisis'' whenever its investments do 
poorly. The combination of a sharp decline in the equity markets and 
record low interest rates several years ago was the reason for the 
sharp increase in medical malpractice insurance premiums during that 
period. What we witnessed then was not new. The industry has engaged in 
this pattern of behavior repeatedly over the last 30 years. When ``tort 
reform'' laws are enacted, the insurance companies pocket the resulting 
savings to bolster their profits.
  Data from the National Association of Insurance Commissioners shows 
that in 2005, the profits for the five largest for-profit medical 
malpractice insurers were more than double those of the Fortune 500 
average 17.7 percent v. 8.7 percent.
  Doctors, especially those in high risk specialties, whose malpractice 
premiums have increased dramatically do deserve premium relief. That 
relief will only come as the result of tougher regulation of the 
insurance industry. When insurance companies lose money on their 
investments, they should not be able to recover those losses from the 
doctors they insure. Unfortunately, that is what is happening now.
  Doctors and patients are both victims of the insurance industry. 
Excess profits from the boom years should be used to keep premiums 
stable when investment earnings drop. However, the insurance industry 
will never do that voluntarily. Only by recognizing the real problem 
can we begin to structure an effective solution that will bring an end 
to unreasonably high medical malpractice premiums.
  There are specific changes in the law which should be made to address 
the abusive manner in which medical malpractice insurers operate. The 
first and most important would be to subject the insurance industry to 
the Nation's antitrust laws. It is the only major industry in America 
where corporations are free to conspire to fix prices, withhold and 
restrict coverage, and engage in a myriad of other anticompetitive 
actions. A medical malpractice ``crisis'' does not just happen. It is 
the result of insurance industry schemes to raise premiums and to 
increase profits by forcing antipatient changes in the tort law. I have 
introduced, with Senator Leahy, legislation which will at long last 
require the insurance industry to abide by the same rules of fair 
competition as other businesses.
  Unlike the harsh and ineffective proposals in S. 22, this is a real 
solution which will help physicians without further harming seriously 
injured patients. Unfortunately, the Republican leadership continues to 
protect their allies in the insurance industry and refuses to consider 
real solutions to the malpractice premium crisis.
  I want to conclude with a quotation from the analysis of medical 
malpractice premiums by Weiss Ratings, Inc. Weiss Ratings is not 
speaking from the perspective of a trial lawyer or a patient advocate, 
but as a hard-nosed financial analyst that has studied the facts of 
malpractice insurance rating. Here is their recommendation to us based 
on those facts:

       First, legislators must immediately put on hold all 
     proposals involving non-economic damage caps until convincing 
     evidence can be produced to demonstrate a true benefit to 
     doctors in the form of reduced med mal costs. Right now, 
     consumers are being asked to sacrifice not only large damage 
     claims, but also critical leverage to help regulate the 
     medical profession--all with the stated goal that it will end 
     the med mal crisis for doctors. However, the data indicate 
     that, similar State legislation has merely produced the worst 
     of both worlds: The sacrifice by consumers plus a 
     continuing--and even worsening--crisis for doctors. Neither 
     party derived any benefit whatsoever from the caps.

  Before yielding the floor, I want to briefly address the second 
malpractice bill, S. 23, that the Republican leadership has brought 
before the Senate. The only difference between them is that the first 
bill would take basic rights away from all patients, while the second 
bill takes those rights away only from women and newborn babies who are 
the victims of negligent obstetric and gynecological care. That 
difference does not make the latter bill more acceptable. On the 
contrary, it adds a new element of unfairness.
  The proponents argue that they are somehow doing these women and 
their babies a favor by depriving them of the right to fair 
compensation when they are seriously injured. It is an Alice in 
Wonderland argument which they are making. Under their proposal, a 
woman whose gynecologist negligently failed to diagnose her cervical 
cancer until it had spread and become incurable would be denied the 
same legal right as a man whose doctor negligently failed to diagnose 
his prostate cancer until it was too late. Is that fair? By what 
convoluted logic would that woman be better off? Both the woman and the 
man were condemned to suffer a painful and premature death as a result 
of their doctors' malpractice, but her compensation would be severely 
limited while his is not. She would be denied the right to introduce 
the same evidence of medical negligence which he could. She would be 
denied the same freedom to select the lawyer of her choice which he 
had. She would be denied the right to have her case tried under the 
same judicial rules which he could. That hardly sounds like equal 
protection of the law to me. Yet, that is what the advocates of this 
legislation are proposing.
  Of course, this bill does not only take rights away from women. It 
takes them away from newborn babies who sustain devastating prenatal 
injuries as well. These children face a lifetime with severe mental and 
physical impairments all because of an obstetrician's malpractice, or 
misconduct by a health care provider or insurer. This legislation would 
limit the compensation those children can receive for lost quality of 
life to $250,000 in nearly all cases--just $250,000 for an entire 
lifetime. What could be more unjust?
  There are babies who suffered serious brain injuries at birth and 
will never be able to lead normal lives. There are women who lost 
organs, reproductive capacity, and in some cases even years of life. 
These are life-altering conditions. It would be terribly wrong to take 
their rights away. The Republicans talk about deterring frivolous 
cases, but caps by their nature apply only to the most serious cases 
which have been proven in court. These badly injured patients are the 
last ones we should be depriving of fair compensation.

[[Page 7233]]

  The entire premise of this bill is both false and offensive. Our 
Republican colleagues claim that women and their babies must sacrifice 
their fundamental legal rights in order to preserve access to OB/GYN 
care, that they must leave their rights at the door. The very idea is 
outrageous. For those locales--mostly in sparsely populated areas--
where the availability of OB/GYN specialists is a problem, there are 
far less drastic ways to solve it.
  This bill is based on the false premise that the availability of OB/
GYN physicians depends on the enactment of Draconian tort reforms. If 
that were accurate, States that have already enacted damage caps would 
have a higher number of OB/GYNS providing care. However, there is in 
fact no correlation. States without caps actually have 29.1 OB/GYNS per 
100,000 women, while States with caps have 25.5 OB/GYNS per 100,000 
women. States without caps actually have more OB/GYNS serving their 
female population.
  This is not a more acceptable bill because it applies only to women 
and newborn babies injured by obstetrical and gynecological 
malpractice. That makes it even more arbitrary, even more outrageous. 
Not one victim should be denied the basic rights that this bill would 
take away.
  I urge my colleagues to oppose both of these very unfair bills.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator's time has expired.
  The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I want to speak directly to the issue of 
the bill that applies to the need of women to be able to access doctors 
when they are delivering children and generally to get care from OB/
GYNs. The Senator from Massachusetts has characterized this bill. Let 
me characterize it, as I think the facts are on the side of this bill.
  The purpose of this bill is to allow women, especially women who are 
trying to have children, to have adequate health care. There is a 
crisis in this country today. Large numbers of women either cannot find 
an OB/GYN to assist them or if they can find an OB/GYN, they only have 
one choice. If they do not get along with that doctor, if they find 
they are not comfortable with that doctor, they have no other choice 
but that doctor.
  This bill sets up a very clear decision: You can be for the trial 
lawyers or you can be for women. You can be for the trial lawyers or 
you can be for doctors who want to deliver babies as their profession. 
You can be for the trial lawyers or you can be for children, especially 
children in prenatal situations. That is the choice in this bill.
  The facts are almost uncontrovertible because they are so clear. The 
number of doctors practicing and delivering babies is dropping 
radically. This is especially true--especially true--in rural areas. 
You cannot--let's put it this way: A trial lawyer cannot deliver a 
baby. They are talented people. In fact, in the years 2003 and 2004, 
they contributed over $185 million in political contributions, and as a 
result, they were able to garnish $18 billion in fees dealing with 
malpractice activity. So they are talented people. I do not deny that. 
But a trial lawyer cannot deliver a baby.
  But we are getting to a point where if you are a young woman or a 
woman who desires to have a child, you are probably going to have to 
drive by the courthouse to find your doctor because they are being 
subjected to so many lawsuits, if they happen to be in the business of 
delivering babies.
  New Hampshire is a classic example of this situation. There is only 
one doctor north of the White Mountains, which is a fairly large amount 
of area and a great place to live, and people who live there choose to 
live there because it is a great place to live. There is only one 
doctor above the White Mountains--that is called northern New 
Hampshire--who delivers babies. If that doctor is not around or if that 
doctor is on a break or maybe if you do not like that doctor, you 
literally are going to have to drive an hour, 2 hours, maybe even 
longer, in order to see a doctor if you are a woman who wants to get 
care in delivering your child. And believe me, that can be a dangerous 
experience, driving in a snowstorm. Hopefully, you can get somebody to 
drive you if you are about to deliver. But in any event, driving 
through a snowstorm in northern New Hampshire is a difficult situation. 
But that is what people are subjected to in that part of the State 
because the doctors who used to practice up there, who used to deliver 
babies, cannot afford to deliver babies any longer in that part of the 
State. Why? Because the population is not large enough to pay their 
premiums, which have escalated, skyrocketed, doubled--doubled upon 
doubled--over the last 20 years in the area of delivering children. So 
they have opted out of the practice. In fact, one doctor simply closed 
her practice and moved to another State because of the fact that the 
cost of insurance premiums was so high.
  Another whole practice in Rochester, NH, with five OB/GYNs, simply 
picked up their practice and moved across the State line to Maine 
because of the cost of delivering babies.
  One of the leading doctors in the State, Dr. Cynthia Cooper, who is 
head of the New Hampshire Board of Medicine and an OB/GYN, has given up 
delivering babies, as I understand it.
  Dr. Patricia Miller from Derry, NH, a town of 38,000 people, has also 
given up delivering babies, after 15 years.
  I had a doctor in Laconia, which is in the Lakes region--a beautiful 
part of the State--who essentially told me he has to deliver babies 
through November simply to pay the cost of the premium for his 
insurance. He does it because he feels it is his obligation, his 
obligation as a doctor, because that region would not have his talent 
and his care. But believe me, it is hardly an incentivizing event to 
pursue that type of practice.
  What drives these premiums? Well, if you listen to the Senator from 
Massachusetts, it is the evil insurance companies. Insurance companies 
do not drive these premiums. What a fallacious argument that is. They 
set the premium in order to be able to afford to pay the costs, which 
costs are generated by the excessive amount of lawsuits that are being 
brought and the extraordinary recoveries which, on occasion, are simply 
out of whack.
  When trial lawyers in this country are obtaining $18 billion in fees 
over a 2-year period that could have been money--if the Senator from 
Massachusetts wants to help out the health care system--that could have 
been money which could have gone into health care delivery, think of 
how many OB/GYNs would be practicing out there.
  Well, one State decided to do something about that, the State of the 
Presiding Officer: Texas. In an act of considerable clairvoyance, I 
would say, they decided to take the California model, which has worked 
pretty well, and improve on it. As a result, they have put in place a 
tiered system of recovery, which is what the bill does. It essentially 
follows the Texas model, which was a follow-on to the California model.
  In both Texas and California, recovery has been reasonable for those 
people injured. But equally important, doctors have started to practice 
medicine again, instead of just basically defending themselves from 
lawsuits. It has become affordable to become a doctor and practice in 
the State of Texas, so much so that the facts speak for themselves. Mr. 
President, 3,000 new doctors have moved into Texas since this law was 
passed, with 81 new obstetric doctors. That is a huge increase in 
medical opportunity and care, especially for women, women of 
childbearing years, and for children because Texas had the good sense 
to take this approach. The same has occurred in California.
  So progress has been made. We have uncontrovertible facts which show 
that you can resolve this issue, that you can allow women to have the 
opportunity, especially women of childbearing age, to see doctors and 
have choices in doctors and be able to be cared for by doctors who wish 
to deliver babies and can afford to deliver babies.
  This is a huge step forward for those two States. It is time the 
Federal Government, the National Government, address the issue, also. 
That is why we

[[Page 7234]]

have brought forward this very targeted bill.
  The bigger bill, which I also support, is an excellent idea. There 
are other specialties that need attention: neurosurgeons, emergency 
room docs, doctors, especially, practicing in underserved areas. If you 
are a doctor in an emergency room or if you are a doctor practicing in 
an underserved area, you are not making a lot of money. You are 
fortunate if you are making anything. I do not know what the hourly 
rate works out to, but those doctors work massive hours. Considering 
the huge amount of expense they put into their education and their 
professional development, their return is not all that high if they 
have decided to pursue caring for people in underserved areas, rural or 
urban areas, or emergency rooms. Yet they get hit with these premiums, 
which essentially make it very difficult for doctors to choose that 
course of practice, which is so important.
  So a broader bill does make sense. But it gets attacked, and it has 
been attacked rather aggressively from the other side, with the 
footnotes that have been handed to the other side by the trial lawyer 
groups, as they try to set up the straw dog of the insurance companies 
or the straw dog of some sort of recovery system that is unfair to the 
seriously injured. So the bigger argument becomes more complex and more 
difficult to understand and can be more obfuscated and has been 
effectively by our friends on the other side and by the trial bar.
  But it is very hard to obfuscate, it is very hard to get past the 
simple fact that there is only one OB/GYN practicing in northern New 
Hampshire. It is very hard to get by the simple fact that if you are a 
woman in rural Kansas or rural New York or rural Illinois or urban 
areas within those States or rural Texas, you are going to have a lot 
of problems finding a doctor when you decide to have children because 
the doctors have been driven out of the business of the practice by 
these excessive and unrelenting lawsuits.
  So this bill is very simple. Rather than getting into the rather 
convoluted, smoke-filled discussion of the entire medical reform issue, 
it just goes at one great, important need in our country; that is, if a 
woman wants to have a child, she should have high-quality medical care 
so that child is brought into the world in the best possible condition 
and the woman's health is protected during the childbearing period. 
This bill will do that, and I hope everyone will support it.
  At this point, I reserve the remainder of our time.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THUNE. Mr. President, today the Senate will vote on a couple of 
cloture motions dealing with medical malpractice reform. We will have a 
debate later this week on small business health plans. This is a week 
in which we have an opportunity to address what is probably one of the 
most important, if not the most important, domestic policy issues that 
we will deal with in the foreseeable future; that is, access to health 
care for more Americans, more affordable health care for more 
Americans.
  These issues are not new to the Congress. In fact, as a Member of the 
House of Representatives, I had the opportunity to vote numerous times 
on medical malpractice reform, on small business health plans to allow 
more people to have access to health care by joining larger groups, 
thereby driving down the cost of insurance and providing coverage to 
some of the 45 million people who currently are not covered.
  Estimates are that as small business health plans pass, we will have 
11 million more Americans with health insurance, making a big dent in 
the ranks of the uninsured. In the time since I first came to Congress 
in 1996, in the last decade, there have been 13 different votes in the 
Congress: There have been five votes on medical malpractice reform; 
there have been eight votes on small business health plans. In those 
cases, the House of Representatives has acted. There have been majority 
votes coming out of the House. That legislation would then come to the 
Senate where it would be obstructed, filibustered, and ultimately would 
die.
  I submit to my colleagues that these are both measures for which 
there is majority support in the Congress. If you look at the House, 
they have passed it repeatedly. If you look at the Senate, if we had a 
vote today and we had to get 51 votes or a simple majority in the 
Senate, we would be able to pass medical malpractice reform. We would 
also be able to pass small business health plans. The other side has 
repeatedly denied us an opportunity to have an up-or-down vote on these 
particular issues. That is wrong. It is wrong for a lot of reasons, but 
it is wrong, most importantly, because it is hurting the welfare of 
Americans who desperately need access to health care and need the cost 
of health care brought down.
  Today when we vote on medical malpractice reform, we will be 
addressing an issue that affects the well-being of all Americans 
because in one way or another, when physicians have to deal with 
escalating premiums for liability insurance, those costs ultimately get 
passed on to all of us. If you don't believe that, look at the 
statistics.
  In 2002, the Health and Human Services issued an update on the 
medical liability crisis. It found that the direct cost of medical 
liability coverage and the indirect cost of defensive medicine 
increased the amount the Federal Government must pay for Federal health 
programs such as Medicare and Medicaid by $22.5 billion a year.
  Additionally, a January 2006 Pricewaterhouse Coopers study entitled 
``The Factors Fueling Rising Health Care Costs,'' concluded that 
medical liability and defensive medicine accounted for 10 percent of 
the increase in the rising cost of health insurance premiums.
  The median liability jury award in medical liability cases almost 
tripled between 1997 and 2004. In 2003, the GAO found:

       Losses on medical malpractice claims--which make up the 
     largest part of insurers' costs--appear to be the primary 
     driver of rate increases in the long run.

  With these statistics and findings of not only the GAO but numerous 
independent studies, it is easy to see that it is time for Congress to 
address the medical liability crisis. S. 22 and S. 23 provide needed 
and sensible medical liability reform. Based on the Texas stacked cap 
model for noneconomic damages, these pieces of legislation allow up to 
$750,000 for noneconomic damages and unlimited awards for economic 
damages. Additionally, plaintiffs may recover punitive damages twice 
the amount of economic damages, or $250,000, whichever is greater.
  S. 22 and S. 23 also maximize patient recovery by limiting the fees 
attorneys may recover on a contingency basis. My State of South Dakota 
currently has a cap of $500,000 for noneconomic damages. S. 22 and S. 
23 respect States rights and do not preempt noneconomic damage caps in 
place, not only in South Dakota but in 25 other States as well. It is 
time the obstruction in the Senate come to an end and that we put 
patients before lawyers and allow a straight up-or-down vote on S. 22 
and S. 23. Obstructing a vote on medical liability reform jeopardizes 
every American's access to quality health care and raises the cost for 
individual taxpayers as well as for State and Federal Governments. This 
is especially true in rural States such as South Dakota where there is 
only one licensed physician for every 450 residents.
  I believe it is high time the Senate show the American people that 
Congress understands their concerns about access to and the cost of 
health care. Pass S. 22 and S. 23 and do what I believe a majority in 
the Senate and the House of Representatives support; that is, to 
address the rising cost of health care by putting reasonable limits in 
place, many of which have been adopted and are successfully working in

[[Page 7235]]

States throughout the country. It is time to end the obstruction and 
allow these measures to be voted on. I hope my colleagues will vote 
that way when the cloture votes come up.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, a lot has been said about the Texas 
model, which is the bill that we are considering today. I wanted to 
talk a little bit about what the Texas situation was before 2003 when 
significant medical malpractice reform was enacted.
  According to the Texas Department of Health, 24 counties in Texas had 
no primary care physicians, 138 counties had no pediatricians, and 158 
counties had no obstetricians. Texas ranked 48th of the 50 States in 
physician manpower. Why were we having such trouble? Because the cost 
of doing business in Texas before 2003 was unsustainable due to 
increased litigious activity. Insurance rates were driving our doctors 
out of Texas, or they were going out of business and not even 
practicing medicine anymore.
  In 1991, Texas averaged 13 claims per 100 physicians. Yet by 2000, 
Texas averaged over 30 claims per 100 physicians. Of these claims, 
there was a disproportionate growth in noneconomic damages, damages 
such as pain and suffering, loss of consortium. This growth was in 
contrast to awards of economic damages such as lost wages and medical 
care costs. In 1991, noneconomic damages averaged only 35 percent of 
total verdicts. By 1995, they were 65 percent of total verdicts.
  From 1999 to 2003, the Texas Medical Liability Trust, which covered 
about one-third of the State's doctors, increased rates by 147 percent. 
In the Rio Grande Valley, physicians in general surgery and OB/GYNs 
ranked sixth and seventh, respectively, in the Nation for highest 
premium rates in 2002. Naturally, all of these costs were passed on to 
consumers. The impact on litigation in the Texas health care system was 
undeniable and unsustainable.
  In 2003, Texas made bold changes to the tort system in an attempt to 
restore access to health care, and we have seen a dramatic change. 
Texas has gained more than 3,000 physicians since passing liability 
reform. After a net loss of nine orthopedic surgeons in our State from 
2000 to 2003, the State has experienced a net gain of 93 orthopedic 
surgeons since 2003. After a net loss of 14 OB/GYNs from 2001 to 2003, 
Texas has had a net gain of 91 since 2003.
  We have also added 273 anesthesiologists, 24 neurosurgeons, 24 
pediatric cardiologists, 14 pediatric oncologists, and 10 pediatric 
surgeons since passing liability reform.
  Claims in most Texas counties have been cut in half. Prior to the 
reforms, statewide claims averaged close to 400 per month. After the 
reforms, claims have averaged 200 per month in our State.
  Prior to reform, Texas had five liability carriers. Since reform, 
Texas has added 3 new rate-regulated carriers and 13 new unregulated 
insurers. The five largest insurers announced rate cuts last year, with 
an average premium reduction of 11.7 percent.
  Anecdotally, I have talked to doctors who are coming back into 
practice, doctors who have said they have seen as much as 40 percent 
cuts in premiums for medical liability.
  Medical liability reform works. Lawsuits are down, insurers have 
returned to the State, rates are down, and physician numbers are up. 
This means better health care for the citizens of our State.
  The bills before us that we will be voting on today are modeled on 
the Texas plan. Damages for pain and suffering are allowed, but not at 
such exorbitant rates that doctors are taken out of our health care 
system. Since 2003, Texas has seen an increase in the quality of health 
care for our citizens because more physicians are coming back to the 
State.
  I urge my colleagues to support the bill. Year after year, we have 
tried to reform medical malpractice in this country, and the Senate has 
been the stumbling block. Let's do something good for health care and 
access to health care for our citizens, and let's start debating 
malpractice reform.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The minority controls the time until 5 p.m.
  Mr. LEAHY. Mr. President, I find it unfortunate that we do not hear 
any discussion by proponents of this legislation about what is best for 
patients injured or killed by medical errors. The debate in favor of 
malpractice award caps has been cast in terms of patient accessibility 
to health care, but what about patient safety? Capping noneconomic 
damages may benefit insurance companies, but it does nothing for 
victims and nothing to address the serious problem of preventable 
medical errors.
  Despite all of the rhetoric and all the myths and misinformation 
about the so-called crisis facing our medical professionals, what about 
the fact that studies have estimated that medical errors kill up to 
nearly 100,000 people each year? How does capping what a victim can 
recover help address this tragic fact? Rather than having all the talk 
be about alleged physician shortages and phantom reductions in 
insurance rates, we should be looking at how to improve the quality of 
care patients receive and how to improve patient safety. This 
legislation does nothing to provide any incentive for health care 
providers to improve the safety of their services, drug companies to 
rigorously test their products, or nursing homes to provide responsible 
and compassionate care to our elderly citizens.
  Aside from the fact that caps on non-economic damages will not 
address exorbitant insurance rates, such caps harm both women and 
children. The Wall Street Journal published an article in 2004 
detailing the effects of California's non-economic damages cap. The 
article discussed how the California law has created two classes of 
malpractice victims: those who earn large amounts of money and get good 
representation, and those who do not and cannot find advocates willing 
to take on their cases. The effect is that many women who do not work, 
but raise children, cannot get representation because they cannot point 
to an annual salary that will be lost, and thus lawyers are reluctant 
to invest the hundreds of thousands of dollars necessary to litigate a 
meritorious claim. The same is true for children, whose recovery under 
this legislation would depend on often difficult estimates of the cost 
of future care. A California attorney quoted in The Wall Street Journal 
article summed up the California law's effect by concluding: ``We are 
saying to doctors and hospitals it's OK to kill somebody who comes from 
a poor family because ultimately they aren't going to have the same 
effect on our medical-malpractice insurance as somebody who comes from 
a rich family.'' The similar one-size-fits-all approach in this 
legislation is the wrong way to go.
  I also question the timing of partisan legislation that will do 
nothing to address patient safety. As insurance rates, like gas prices, 
continue to soar to the benefit of corporate profits, as the number of 
uninsured continue to rise during this presidency, the Republican-
controlled Senate seeks to take up partisan legislation that will help 
a few very powerful insurance companies become even more powerful. 
Rather than take up legislation to apply competitive antitrust 
principles to the business of insurance, the majority leader insists 
that we limit our actions to legislative proposals that will deprive 
citizens injured by medical errors a full measure of justice. Instead 
of taking up legislation to push the frontiers of life-saving medicine 
through stem cell research, we are going to debate whether we should 
make it easier for insurance companies to continue their predatory 
behavior at the expense of both doctors and patients. Instead of 
calling this a malpractice bill, we should call it a gift to the 
insurance companies bill.
  In recent weeks, hundreds of thousands of Americans have taken to the

[[Page 7236]]

streets in peaceful demonstrations to urge sensible and humane 
immigration reform and the public clearly wants Congress to address 
these issues and to strengthen our borders, and instead we are 
discussing how to dismantle our internal borders and tread on State 
sovereignty by nullifying State tort law. A war rages in Iraq in which 
our Nation's best and bravest are making the ultimate sacrifice to 
advance democracy, and meanwhile we are talking about how to curtail 
Americans' access to justice. Forty-five million people do not have 
health insurance in this country, and yet we are considering 
legislation that will make it harder for children who suffer lifelong 
injuries from medical errors to get the long term care they need. The 
gap between the richest Americans and everyone else continues to widen, 
but instead of taking up legislation to raise the minimum wage, the 
majority leader wants to shield lucrative insurance companies from 
having to pay fair awards to medical malpractice victims. Where in the 
majority leader's schedule are the American people's real priorities?
  There are ways to improve health care. These bills do not do that. 
There are alternatives that address the high costs of medical 
malpractice insurance and patient safety, but they differ from the 
narrow approach we debate today. There are solutions to both the 
current high rate of medical errors, as well as high insurance costs, 
that will not further victimize patients or intrude into the 
sovereignty of State legislatures and citizens, but they are not 
brought before the Senate for consideration and action.
  If we want to address high insurance costs, let us address the 
unhelpful practices within the insurance industry and find a real 
solution that does not penalize victims of medical errors. If we want 
to bring down the number of medical errors, merely cutting costs and 
increasing profits for insurance companies is not the way to go. 
Capping malpractice awards does nothing to treat the root cause of 
malpractice lawsuits. Let us put patients before insurance companies in 
this debate and find real solutions to the preventable medical errors 
that are occurring every day.
  Some of us have proposed legislation to tackle the problem of rising 
insurance costs without taking away American citizens' access to 
justice. If we want to improve patient care and lower the number of 
medical malpractice claims, we need to find ways to prevent medical 
errors at the rate they occur now. That is common sense. Senator Obama 
has proposed the Hospital Quality Report Card Act of 2006 to provide 
accountability within those hospitals compensated through Medicare by 
requiring highly detailed reporting of safety procedures, patient 
accessibility, the incidence of errors and infections, and many other 
areas important to both patient safety the effectiveness of treatment. 
Senator Obama's bill would provide the information to help consumers 
make an informed decision about where to obtain treatment. It would 
provide the information necessary for hospitals to improve the safety 
and effectiveness of their services. It would allow insurers and 
purchasers of insurance to reduce the likelihood of claims by sending 
their insured customers and employees to the best hospitals available, 
and would allow doctors and policy makers to target areas in need of 
improvement. Senator Obama's bill puts the priorities of patient safety 
and health care improvement first. I commend the Senator from Illinois 
for this bill and I urge other Senators to join me in supporting it.
  If we want to reign in the costs of insurance for health care 
providers, we must address the conditions within the insurance 
industry. I have proposed a bill along with Senator Kennedy to exempt 
medical malpractice insurers from the counterproductive McCarran-
Ferguson Act. This bill would give regulators the tools necessary to 
prevent anti-competitive business practices that hurt doctors and 
patients. If medical malpractice insurers are artificially driving up 
the costs of insurance, we should stop it. Health care in our country 
is too important to allow profits at the expense of patients. We are 
not going to stop soaring insurance premiums by cutting off the access 
of victims to justice. We are going to stop them by stopping the anti-
competitive behavior of the insurance companies. Again, health care in 
our country is too important to allow profit at the expense of 
patients, especially when in the last 6 years we have seen the highest 
increase in the number of uninsured Americans in my lifetime.
  I urge other Senators to join me in rejecting legislation that will 
do nothing more than benefit profitable insurance companies under the 
guise of improving patient accessibility. Let us work together in a 
bipartisan fashion to come up with real solutions to the problem of 
preventable medical errors. Let us find ways to end the abusive 
practices in assisted living facilities and nursing homes. Let us find 
ways to lower insurance costs without hurting victims. Those in need of 
care must be able to trust their doctors and health care providers 
without doubt. Elderly Americans deserve the best care that can be 
provided. Our doctors and other health care providers deserve to be 
treated fairly in the marketplace when purchasing malpractice 
insurance, and not be affected by artificial monopolies and price-
fixing cartels. If we work together, we can make progress and make a 
difference.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, first, I thank Senator Enzi 
from Wyoming and his staff and my staff for the effort they have put 
into S. 1955. I was pleased to work with them in trying to help our 
Nation's small businesses and our Nation's uninsured.
  Mr. President, 45 million people don't have health insurance in our 
country today. We have heard that statistic so many times that it is 
starting to feel numb to us, but we can't let that happen. Forty-five 
million people translates to about one of every six Americans. I would 
like to put a face to that figure and start bringing some feeling back 
to the state of health insurance coverage in the United States.
  If the 45 million uninsured Americans held hands and formed a chain 
between New York City and Los Angeles, they would not only stretch the 
entire distance, they would be able to go back and forth from coast to 
coast 14 times.
  We can no longer wait to help this ever-growing number of people gain 
health insurance. It is time to start increasing the number of insured 
people in our country, and this bill does just that.
  It is projected that S. 1955 will make health insurance affordable 
for 1 million working Americans, and that is a sizable start to the 
process of providing health insurance to the one in six without it.
  By allowing business and trade associations to band their members 
together and offer group health insurance coverage on a national or 
statewide basis, we will be making an important stride in making health 
insurance affordable for Americans.
  Nearly every week since becoming a Senator, I have heard from small 
business owners in my State that can no longer afford health care for 
themselves or their employees.
  Health care premiums are experiencing double-digit growth annually. 
Small businesses can't keep up with the costs. Since 2000, group 
premiums for family coverage have grown nearly 60 percent. So if we 
don't do something to help small businesses cope with the cost of 
health insurance, soon we will have an entire workforce without health 
insurance coverage.
  This bill, the Health Insurance Marketplace Modernization and 
Affordability Act of 2005, is designed to lower health insurance costs 
by stimulating market reforms and promoting competition, while allowing 
trade associations the ability to offer group insurance plans for 
employees.
  It is important to note that we keep oversight at the State level 
with the State insurance commissioners. For the past 10 years, the 
Senate has debated AHP legislation, and for 10 years nothing has 
happened to help our small businesses provide those health benefits. 
And small business health plans can work. It is time we looked at 
something that can and will work.

[[Page 7237]]

  I believe in this legislation because it is the first health benefits 
legislation to get both sides--the business folks and the insurance 
folks--working together.
  Senator Enzi and I know that concerns have been raised about this 
bill, and each time we have been approached by a group with a concern, 
we have listened and we have tried to work together to strengthen this 
bill and its hopes for making health insurance affordable for America's 
small businesses.
  The traditional AHP bill gave a rating and mandate advantage to 
association plans that resulted in adverse selection and an unlevel 
playing field. The Enzi-Nelson bill eliminates the rating and mandate 
advantage that Federal AHPs would have had under previously proposed 
legislation, which went nowhere. As a former insurance commissioner 
myself, it was crucial to me that this bill adhere to strict insurance 
principles. I think the bill before us will do just that.
  As I see it, we have three options. The first is to do nothing to 
help the 45 million uninsured Americans. Since I genuinely believe we 
all want to improve health care, I will move on to the next option.
  The second option is to keep trying to pass AHP legislation year 
after year, but I am afraid this approach will result in about the same 
dismal outcome as the do-nothing option that no one wants.
  The third option, which I think is the best solution, is to act on 
small business health plans and pass this legislation.
  In Nebraska, there are at least 30,000 small businesses with fewer 
than 50 employees who would be directly impacted by this legislation. 
Currently, 20,000 of these businesses don't offer health benefits.
  I read a report last month by respected actuaries who looked at our 
bill. They believe it will help small businesses reduce health 
insurance costs by $1,000 per employee and shrink the number of 
uninsured working families by 8 percent. That is 1 million Americans 
who will now be able to afford health insurance because of the bill.
  Recent survey results conducted by a bipartisan research firm shows 
that S. 1955 enjoys the support of 89 percent of Americans. It is a 
rare day in the United States anymore when 9 out of 10 people are 
united behind a cause.
  So I hope this unity carries over to the Senate floor and that 
colleagues will join with Senator Enzi, myself, and others and pass S. 
1955. It is in the best interest of Americans who want health 
insurance.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I rise today to speak about the medical 
liability reform bills before us today: one is a comprehensive reform 
bill that I introduced, and the other specifically deals with OB/GYNs, 
which Senator Santorum introduced.
  There are a couple of very important points to make on this 
legislation. First of all, Senator Nelson, a friend of mine, just spoke 
about the number of uninsured Americans. Over the next couple of days, 
we are going to vote on legislation to establish Small Business Health 
Plans. This is good legislation that is intended to help reduce the 
number of uninsured.
  But another problem related to the number of uninsured Americans is 
the high cost of health care. The cost of health care is making it too 
expensive for people to afford health insurance. One of the primary 
drivers of health care costs is increasing medical liability premiums 
for health care providers.
  Doctors are being forced out of their practices because they cannot 
afford to practice anymore. We saw the trauma center in southern Nevada 
close for a 10-day period. It serves 10,000 square miles. People died 
because of the closure. We have also seen maternity wards close across 
the country. Neurosurgeons and other specialists are no longer taking 
calls unless the calls are for cases that are not very risky. 
Specialists can't afford to take high-risk cases because they risk 
losing everything they have based on seeing one case.
  I have a good friend in southern Nevada who practices obstetrics. In 
his practice, he specializes in high-risk pregnancies. Because of the 
medical liability problems that we have seen in the past several years, 
his insurance company limits the number of high-risk pregnancies with 
which he can assist.
  If you are a woman and you are pregnant with a high-risk pregnancy, 
it would seem to me that you would want the best of the best to take 
care of you. That only makes sense. But because of the medical 
liability crisis we are facing in this country, the best of the best 
are limited in the number of cases they can see.
  If you are a doctor in America today--this is becoming a truism--you 
will be sued. If you practice long enough, you will be sued in America 
today. We need to deal with the number of frivolous lawsuits that are 
clogging our legal system.
  Every American needs to ask themselves this fundamental question: If 
you were in an automobile accident or if you needed care in an 
emergency room, and the specialist you wanted to see wasn't available, 
wasn't there, was no longer practicing, or wouldn't take the call, 
would you accept the reason that this happened is because this body, 
the Senate, wouldn't even take up a bill and debate medical liability 
reform, which could bring down health care costs, as it has in several 
States across America? If you were a mother who had a high-risk 
pregnancy or any type of pregnancy, and you couldn't get obstetrical 
care, how would you feel if the reason you couldn't get care was 
because your doctor left practice or left the State because medical 
liability insurance premiums were too high?
  We have a serious problem. According to the American Medical 
Association, 21 States are in crisis today, 6 States are not, and the 
rest of the States are headed toward crisis. The six States that are 
not in crisis have all passed meaningful medical liability reform. The 
bill before us today is modeled after one of those States: the State of 
Texas. The State of Texas has a $250,000 cap for a judgment against a 
health care provider. In addition, the patient can be awarded up to 
$250,000 for a judgment against one health care institution. If two or 
more institutions are involved, the patient can receive up to $500,000, 
with each institution not liable for more than $250,000. Thus, injured 
patients can be awarded noneconomic damages for pain and suffering 
totaling $750,000. The legislation has no limits on economic damages 
for necessary health care expenses that you may incur over your 
lifetime. You can sue for unlimited economic damages. But, the caps on 
noneconomic damages are key to whether the legislation is effective.
  Let's compare a couple of States, Texas and Pennsylvania. Texas has 
enacted meaningful medical liability insurance reform; Pennsylvania has 
not. These are just two examples. In Texas, doctors are moving back to 
the State. As a matter of fact, nine hundred doctors specializing in 
emergency care and high-risk procedures have moved to Texas since 2003, 
when Texas law was enacted. Texas infants and children now have better 
access to specialists. Ninety-four pediatric specialists alone have 
moved into the State. In contrast, Pennsylvania doctors are leaving the 
State. I believe there are more medical schools in Pennsylvania than 
practically anywhere else in the country, yet doctors are leaving the 
State--not because they don't love Pennsylvania, but because they 
cannot afford to practice in Pennsylvania. In Texas, the premiums for 
medical liability insurance policies are going down. In Pennsylvania, 
they continue to skyrocket. Because of medical liability reform in 
Texas, 30 new medical liability insurers have come into the State to 
write policies for doctors. In Pennsylvania, medical liability insurers 
are leaving the State.
  The difference here is that doctors in Texas can shop among 30 
different medical liability insurers. And, market forces bring 
insurance prices down. Because of all of this, it is becoming less 
expensive to practice medicine in

[[Page 7238]]

Texas and more expensive to practice in Pennsylvania.
  The bill I offered, which is before us today, is modeled after the 
Texas legislation. The bill establishes caps on noneconomic damages. 
The bill also limits attorneys' fees. This provision will ensure that 
patients receive a larger percentage of their damage awards. I believe 
that the person who is injured with a true medical malpractice case 
should get the award instead of having the award go to higher and 
higher attorneys' fees.
  My legislation also includes an expert witness provision to ensure 
that relevant medical experts serve as trial witnesses. This provision 
is extremely important. Today, if you have a medical liability case 
before a jury, they bring in so-called professional witnesses to 
testify who are used to further abuse the system. There is a whole 
industry of these so-called professional witnesses who travel around 
the country and testify. The problem is that a lot of these so-called 
professional witnesses are not experts in the field in which they are 
testifying. This bill says that if you are, for instance, testifying in 
a neurology case, then you should be a specialist in neurology. I know 
this is common sense, but that is not the way our courts work today. 
This bill would require a specialist or an expert to truly be an expert 
in the field in which they are testifying.
  This bill has been contentious for several years. The trial lawyers 
and their cohorts spent $182 million over the last few elections. And 
they have gotten back out, just in medical liability awards, $18 
billion. That is a 10,000-percent return on their investment in 
politics.
  We cannot allow the trial lawyers to control this debate. We cannot 
allow the trial lawyers to say: We are not even going to allow for 
debate of this bill on the floor of the Senate. That is what is 
happening. This bill isn't even going to be allowed to have an up-or-
down vote. Some people say: Let's have insurance reform. Let's bring it 
all on. Let's have those amendments and let's debate it. But the other 
side of the aisle is not even allowing us to debate this bill on the 
floor of the Senate.
  This crisis is not going away; it is getting worse in America. We 
must act as a responsible body. It is unfortunate that the greatest 
deliberative body supposedly in the history of the world can't even 
deliberate on this bill. It is time to bring real medical liability 
reform to the floor of the Senate and debate it. Let's let the American 
people see what the medical liability reform debate is all about. Let's 
go forward so that we can save our doctors, nurses, nurse midwives, and 
other health care providers, so that when patients need care, they get 
that care.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SANTORUM. Mr. President, I want to continue on with some of the 
comments I was making earlier about the critical situation in 
Pennsylvania with respect to this liability crisis and a couple of 
examples of how out of control the system has become. I was at St. 
Luke's Hospital up in the Lehigh Valley, and I was saddened by the 
changes that have happened with some of the losses of physicians that 
have occurred in there. It is one of the growing areas of our State, 
and this is an area that has been hit with very high rates of 
malpractice and obviously, as I will discuss here, losing physicians.
  I want to talk about a couple of things. One is a case that St. 
Luke's was involved in that tells you how absurd, and particularly in 
this case, the jury awards are in Philadelphia, which has been the big 
problem area in Pennsylvania--some of the jury awards that have come 
out of Philadelphia.
  We had a case in September and October of the year 2000 which 
involved a baby girl born 3 months premature to a 17-year-old mother 
whose medical records indicated a crack cocaine addiction. The mother 
began experiencing complications, including a partial placental 
abruption and premature labor. The mother was admitted to another 
hospital for these complications and then transferred to St. Luke's. 
The mother was placed on strict bed rest and given medication to stop 
the onset of labor and to prevent progression of the placental 
abruption. Despite warnings from her doctor about the risks to her baby 
of premature birth and possible neurological damage, possibly death, 
the mother, against medical advice, left the hospital. She turned up 3 
days later with complete placental abruption and premature delivery 
could not be avoided at that point. Emergency surgery was performed. 
The baby was delivered weighing 4.1 pounds. The baby had a common 
condition with premature babies which is an opening in the heart that 
usually closes shortly after birth. The baby was treated for 29 days in 
the neonatal intensive care unit at St. Luke's, was given medication to 
attempt to close the opening in the heart. The baby had an adverse 
reaction to the medication. Surgery was required to close the opening. 
The surgeon was unsuccessful. There were no documented complications in 
the surgery, no allegations that St. Luke's did anything wrong or 
improper in her care.
  The baby was transferred to another hospital for further surgery. 
During treatment at the second hospital, the baby had complications, 
was transferred back to ICU at St. Luke's. Again, no documented 
complications during the second stay at St. Luke's up until the child's 
release. The mother during this time gave up parental rights. The baby 
was adopted down the road by parents who elected not to seek legal 
action. But--and this is somewhat unknown--somehow or another, an 
attorney in Philadelphia was appointed the guardian ad litem to the 
child because of the child's nexus to a second hospital located in 
Philadelphia County. So the lawyer sued on behalf of the baby without 
the consent or knowledge of either the actual parent or the adopted 
parent.
  The verdict in the case was $100 million against the hospital--a $100 
million verdict in this case. So you wonder: Well, gee, why are we 
trying to put caps on awards? A $100 million verdict in this case. That 
verdict would have shut down this hospital, which is a major medical 
center in the Lehigh Valley. Subsequent to the verdict, they negotiated 
a settlement for substantially less money. But the bottom line is, you 
have a situation where things get out of control because bad things 
happen to people. People are injured. In this case this little baby, 
because of a whole lot of factors I have detailed, is going to have a 
tough life. But is it the fault of St. Luke's Hospital? Is it the fault 
of the physicians who were attending? The answer from all indications 
is no. But you have someone who feels bad that this child is going to 
need some help, so you give verdicts of $100 million.
  The consequence at St. Luke's was that since 2000, 32 private 
physicians have left St. Luke's as a direct result of the malpractice 
insurance crisis. Twelve OB-GYNs, 5 neurosurgeons, 2 pulmonary 
specialists, 3 orthopods, 3 general surgeons, 2 internists, and 1 pain 
management specialist. There has been a 44-percent decline in the 
number of private practice OB-GYN physicians on their medical staff.
  One of the reasons I have introduced S. 23 is because it is not just 
a problem at St. Luke's, it is a problem in Philadelphia, a problem in 
Pittsburgh. We are down to I think three maternity wards in the city of 
Pittsburgh. This is a problem across our State. Unfortunately, the 
heavy hand of politics is played not just here in Washington but also 
in our State Capitol.
  There was a study done that showed that the trial attorneys in 
America in the 2003-2004 election cycle contributed $182 million to 
political campaigns--$182 million. That sounds like a lot of money. It 
is a lot of money. But it is actually a pretty good investment on the 
part of the trial attorneys. Because for that $182 million, they were 
able to collect $18 billion in fees--$18 billion in fees. That is a 
10,000-percent rate of return. Not a bad investment. So they are 
investing in the political climate here. They are investing to make 
sure there is no balance in the system. They are investing because they 
want to keep things out of whack. They want to keep those 40- and 50-
percent awards, the percentages of contingency fees to these big 
awards, so they can keep the gravy train coming.

[[Page 7239]]

  That is something our health care system cannot afford. We cannot 
afford to allow this kind of litigation to be practiced in the health 
care arena. It is destroying our ability to keep physicians in 
Pennsylvania. It is destroying our ability to have responsible medicine 
practiced--not defensive medicine but appropriate medicine and 
responsible medicine that treats patients the way they should be 
treated, not the way they need to be treated to avoid possible 
litigation.
  That is not responsible medicine. That is not the medicine physicians 
want to practice. But, increasingly, in my State, that is the medicine 
they are practicing, and unless we do something tonight, in a few 
minutes, they are going to have to continue to practice that way.
  Mr. VOINOVICH. Mr. President, I rise to speak today about the dilemma 
this Nation is facing regarding access to quality, affordable health 
care. Next to the economy, it is the greatest domestic challenge facing 
our Nation. In fact, the rising cost of health care is a major part of 
what is hurting our competitiveness in the global marketplace.
  One of the biggest factors driving health care costs through the roof 
is medical lawsuit abuse. I have been concerned about this issue for 
quite some time--in fact, since my days as Governor of Ohio. I wish we 
had the outpouring of support for medical liability reform back then 
that I see now. In 1996, I essentially had to pull teeth in the Ohio 
Legislature to pass my tort reform bill.
  I signed it into law in October 1996. Three years later, the Ohio 
Supreme Court ruled it unconstitutional, and if that law had withstood 
the supreme court's scrutiny, Ohioans wouldn't be facing the medical 
access problems they are facing today.
  While things are getting marginally better in some communities in 
Ohio thanks to the California MICRA-like reform initiatives that were 
passed in Ohio in 2002 and 2003, doctors are still leaving their 
practice, and in too many towns, patients are not able to receive the 
care they need. In fact, too many physicians in northeast Ohio are 
still feeling the strain of skyrocketing premiums. For example, 
thoracic surgeons in Ohio are paying as much as $181,000 annually, and 
OB/GYNs in the area are paying $200,000 annually for liability 
coverage.
  The past 5 years have been especially tough on physicians.
  Back in 2002, The Medical Liability Monitor ranked Ohio among the top 
five States for premium increases, and no one felt the impact of this 
increase more than the Schwieterman family in Ohio's rural west-central 
Mercer County. I have mentioned brothers, Doctors Jim and Tom 
Schwieterman, along with their father, retired Dr. Don Schwieterman, 
before here on the floor, but their story is worth repeating.
  Together, these 3 doctors have delivered about 5,700 babies over the 
years. This family has a 113-year history of bringing babies into the 
world--their great-grandfather started their current medical practice 
in 1896. Most importantly, they have never been sued for a delivery.
  Yet, as of September 27, 2004, this family gave up delivering babies 
because of escalating malpractice insurance costs. Their insurance 
rates rose from $25,000 annually to over $80,000 in just 4 years--a 
threefold increase. Dr. Jim Schwieterman has stated that he would 
continue to deliver babies if he could just break even; unfortunately, 
he can't.
  This situation becomes even more devastating when you learn that Dr. 
Jim Schwieterman was one of only a handful of obstetricians providing 
obstetrical care in Mercer County. Now, pregnant mothers must travel, 
in many cases, outside of the county to get obstetrical care.
  Women in Morrow County, OH, are faced with a similar situation. As of 
January 2003, the only remaining physician in the county still 
delivering babies, Dr. Bachedler, was forced to stop after his 
liability costs more than doubled in one year.
  Sadly, obstetricians are not the only physicians in my State who are 
being forced out of practicing medicine. Dr. Romeo Diaz, an oncologist 
from my hometown of Cleveland, saw his liability premiums rise $60,000 
annually. Despite his patients attempt to help him raise the money he 
needed to remain in practice, Dr. Diaz closed his doors in 2003.
  The decision to limit or close their practice does not come easily to 
these physicians. Some time ago, a good friend of mine brought to my 
attention a letter from an OB/GYN in Dublin, OH, who had decided to 
retire from his practice. He wrote the following to his patients:

       On June 17, 2003, I received my professional liability 
     insurance rate quote for the upcoming year, and it is 64 
     percent higher than last year's rate. I have seen my premiums 
     almost triple during the past two years, despite never having 
     had a single penny paid out on my behalf in twenty-seven 
     years as a physician. Even worse, during this time the 
     insurance company has reduced the amount of coverage that I 
     can purchase from $5 million to only $1 million, while jury 
     verdicts have skyrocketed, often exceeding $3-4 million. If I 
     were to purchase this policy, I would be putting all of my 
     family's personal assets at risk every time that I delivered 
     a baby or performed surgery. I refuse to do that. I have 
     therefore decided to retire from private practice on July 31, 
     2003, the final day of my current liability insurance policy. 
     This is not a decision that I take lightly, but unfortunately 
     it has become necessary. For many of you, I have been part of 
     your life for years. I have delivered your babies, and helped 
     you through some of life's most difficult challenges. It has 
     truly been an honor.

  Like these doctors, in 2004, a survey by the Ohio State Medical 
Association, OSMA, indicated that 34 percent of Ohio physicians expect 
to close their practices within the next 2 years without a reversal in 
medical liability rates. And whether they are ultimately forced to 
close their doors, a majority of physicians in Ohio agree that rising 
medical liability rates have directly impacted the way they practice 
medicine. Fifty-six percent of them believe they have increased the 
number of tests they have ordered for patients in order to protect 
themselves from potential lawsuits.
  In fact, a March 3, 2003, report by the Department of Health and 
Human Services calculated the practice of defensive medicine costs the 
United States a total of between $70 and 126 billion a year and 
estimates that the cost for the Federal Government alone is between $35 
and $56 billion. This is costing you and me real money.
  Nevertheless, I am very hopeful when I now hear from physicians back 
home that thanks to the latest packages of tort reform measure that 
passed the Ohio State Legislature, medical liability rates are finally 
beginning to stabilize.
  In fact, a January 2006 Ohio Department of Insurance report found 
that overall rate increases pursued by the five largest insurers were 
significantly less in 2005 than in previous years--6.7 percent in 2005, 
compared to 20 percent in 2004 and approximately 30 percent in 2003. 
For 2006, one insurer has even lowered its rates by 5 percent.
  Good, balanced legislation can make all the difference. Just like we 
are beginning to see in Ohio, medical liability reform efforts in 
States like Texas are providing real results. We have been hearing a 
great deal about the good news coming out of Texas this week on the 
Senate floor, and it is for good reason. In 2003, the Texas Legislature 
enacted comprehensive sweeping medical liability reforms, with 
reasonable limits on noneconomic damages. Texas voters also understood 
the importance of this reform and approved proposition 12 amending the 
State constitution to specifically allow the legislature to enact the 
reasonable caps.
  In just 3 short years, the results have been tremendous. It is hard 
to believe, but Texas physicians are once again able to competitively 
shop for medical liability coverage according to the Texas insurance 
commissioner.
  While this is great news, in many places across the Nation, the 
situation is not the same, and the need for Federal medical liability 
reform is still very real.
  Since the 107th Congress, I have been coming to the floor to speak in 
support of numerous medical liability bills: The HEALTH Act, the 
Patients First Act, The Healthy Mothers and Babies Access to Care Act, 
and the Pregnancy and Trauma Care Access Protection Act, and others. 
Unfortunately, none of

[[Page 7240]]

these pieces of legislation garnered the 60 votes needed here in the 
Senate to achieve cloture.
  Frustrated by this, several years ago, I spent countless hours along 
with the American Medical Association, AMA, going door to door to meet 
with my colleagues to examine other possible approaches for reform. I 
met with a number of my colleagues to explore those approaches and 
generate the kind of support needed to get to 60 votes.
  The biggest complaint I heard from my colleagues is that the cap on 
noneconomic damages in these earlier bills was too low. For this 
reason, I am especially hopeful about the legislation before us today 
and proud to be a cosponsor of both the Medical Care Access Protection 
Act and the Healthy Mothers and Healthy Babies Access to Care Act.
  These bills provide the Senate with a new approach to reforming our 
medical liability system. Like past bills, this legislation provides 
for unlimited payments on economic damages, but it would also mimic the 
State of Texas' approach to capping noneconomic damages. This 
legislation would limit noneconomic damage awards to $250,000 for each 
claimant, a healthcare provider, or each of two health care 
institutions. In total, this legislation creates a $750,000 cap on 
noneconomic damages.
  I also heard concerns from my colleagues that past versions of 
medical liability reform bills would preempt State laws when some 
States already have laws that are working.
  The bill before us preserves States' rights by keeping medical 
liability statutes in place and by allowing future State laws to 
supersede Federal limits on damages.
  Further, the bill protects patients by placing reasonable limits on 
attorney fees, provides a review of expert witnesses to provide greater 
creditability to cases, and maximizes patients' recovery for damages by 
limiting the amount of payment attorneys are able to claim from awards.
  I have been so passionate about the need for liability reform over my 
public service career because the issue is very personal to me. When I 
was young, I suffered from osteomyelitis, a disease in the bone marrow. 
During my 6-month hospital stay, I had two physicians who approached my 
parents with treatment options for me. One physician wanted to go with 
the ``gold standard'' treatment at the time, which would more than 
likely have saved my life but also had the potential to leave me 
without use of my right leg. The second physician, Dr. Holoway, offered 
my parents a more experimental option, one that was less invasive and 
posed less of a risk to my leg. I am thankful my parents chose the more 
experimental treatment, which left me with full mobility.
  I wonder whether a physician in Dr. Holoway's shoes today would have 
taken the same approach with all the potential legal implications. I 
fear in today's environment that doctor would not.
  For this reason, I urge my colleagues to support both the Medical 
Care Access Protection Act and the Healthy Mothers and Healthy Babies 
Access to Care Act. I am confident these bills strike a delicate 
balance between the rights of aggrieved parties to bring lawsuits and 
receive rapid and fair compensation and the rights of society to be 
protected against frivolous lawsuits and outrageous rewards for 
noneconomic damages--damages that are disproportionate to compensating 
the injured and made at the expense of society as a whole.
  Mr. SPECTER. Mr. President, I seek recognition to support moving to 
legislation which would address the serious problems faced today by 
doctors, hospitals and other medical professionals who provide medical 
services, including obstetrical and gynecological services, while 
providing fair treatment to people who are injured in the course of 
medical treatment.
  While most of the attention has been directed to OB/GYN malpractice 
verdicts, the issues are much broader, involving medical errors, 
insurance company premiums and insurer investments.
  I support caps on noneconomic damages so long as they do not apply to 
situations such as the paperwork mix-up leading to an erroneous double 
mastectomy of a woman or the death of a 17-year-old woman on a North 
Carolina transplant case where there was a faulty blood type match or 
comparable cases in the OB/GYN services area.
  An appropriate standard for cases not covered could be analogous 
provisions in Pennsylvania law which limit actions against governmental 
entities or in the limited tort context which exclude from the caps 
death, serious impairment of bodily function, and permanent 
disfigurement or dismemberment.
  Beyond the issue of caps, I believe there could be savings on the 
cost of OB/GYN malpractice insurance and other malpractice insurance by 
eliminating frivolous cases by requiring plaintiffs to file with the 
court a certification by a doctor in the field that it is an 
appropriate case to bring to court. This proposal, which is now part of 
Pennsylvania State procedure, would be expanded federally, thus 
reducing claims and saving costs. While most malpractice cases are won 
by defendants, the high cost of litigation drives up OB/GYN malpractice 
premiums and other premiums. The proposed certification would reduce 
plaintiff's joinder of peripheral defendants and cut defense costs.
  Further savings could be accomplished through patient safety 
initiatives identified in a report of the Institute of Medicine. On 
November 29, 1999, the Institute of Medicine, IOM, issued a report 
entitled: To Err is Human: Building a Safer Health System. The IOM 
report estimated that between 44,000 and 98,000 hospitalized Americans 
die each year due to avoidable medical mistakes. However, only a 
fraction of these deaths and injuries are due to negligence; most 
errors are caused by system failures. The IOM issued a comprehensive 
set of recommendations, including the establishment of a nationwide 
mandatory reporting system; incorporation of patient safety standards 
in regulatory and accreditation programs; and the development of a non-
punitive culture of safety in health care organizations. The report 
called for a 50 percent reduction in medical errors over 5 years.
  The Appropriations Subcommittee on Labor, Health and Human Services 
and Education, which I chair, held three hearings to discuss the IOM's 
findings and explore ways to implement the recommendations outlined in 
the IOM report. The fiscal year 2001 Labor-HHS appropriations bill 
contained $50 million for a patient safety initiative and directed the 
Agency for Healthcare Research and Quality, AHRQ, to develop guidelines 
on the collection of uniform error data; establish a competitive 
demonstration program to test best practices; and research ways to 
improve provider training. These initiatives were funded at $55 million 
in fiscal years 2002 and 2003, and $84 million in fiscal years 2004, 
2005, and 2006, for a total of $412 million.
  There is some evidence that increases in OB/GYN insurance premiums 
and other premiums have been caused, at least in part, by insurance 
company losses, the declining stock market of the past several years, 
and the general rate-setting practices of the industry. As a matter of 
insurance company calculations, premiums are collected and invested to 
build up an insurance reserve where there is considerable lag time 
between the payment of the premium and litigation which results in a 
verdict or settlement. When the stock market has gone down, for 
example, that has resulted in insufficient funding to pay claims and 
the attendant increase in OB/GYN insurance premiums. A similar result 
occurred in Texas on homeowners insurance where cost and availability 
of insurance became an issue because companies lost money in the market 
and could not cover the insured losses on hurricanes.
  In structuring legislation to put caps on jury verdicts in 
malpractice cases, due regard should be given to the history and 
development of trial by jury under the common law where reliance is 
placed on average men and women who comprise a jury to reach a just 
result reflecting the values and views of the community.
  Jury trials in modern tort cases descend from the common law jury in

[[Page 7241]]

trespass, which was drawn from and intended to be representative of the 
average members of the community in which the alleged trespass 
occurred. This coincides with the incorporation of negligence standards 
of liability into trespass actions.
  This ``representative'' jury right in civil actions was protected by 
consensus among the state drafters of the U.S. Constitution's Bill of 
Rights. The explicit trial by jury safeguards in the Seventh Amendment 
to the Constitution were adaptations of these common law concepts 
harmonized with the Sixth Amendment's clause that local juries be used 
in criminal trials. Thus, from its inception at common law through its 
inclusion in the Bill of Rights and today, the jury in tort/negligence 
cases is meant to be representative of the judgment of average members 
of the community, not of elected representatives.
  The right to have a jury decide one's damages has been greatly 
circumscribed in recent decisions of the United States Supreme Court. 
An example is the analysis that the court has applied to limit punitive 
damage awards.
  The Court has shifted its Seventh Amendment focus away from two 
centuries of precedent in deciding that federal appellate review of 
punitive damage awards will be decided on a de novo basis and that a 
jury's determination of punitive damages is not a finding of fact for 
purposes of the re-examination clause of the Seventh Amendment--``no 
fact tried by a jury shall be otherwise re-examined in any Court of the 
United States, than according to the rules of the common law.'' Then, 
in 2003, the Court reasoned that any ratio of punitive damages to 
compensatory damages greater than 9:1 will likely be considered 
unreasonable and disproportionate, and thus constitute an 
unconstitutional deprivation of property in non-personal injury cases. 
Plaintiffs will inevitably face a vastly increased burden to justify a 
greater ratio, and appellate courts have far greater latitude to 
disallow or reduce such an award.
  These decisions may have already, in effect, placed caps on some jury 
verdicts in malpractice cases which may involve punitive damages.
  The pending bills are a starting point for analysis, discussion, 
debate and amendment. I am prepared to proceed with the caveat that 
there is much work to be done before the Senate would be ready, in my 
opinion, for consideration of final passage.
  Mr. WARNER. Mr. President, I rise today, once again, in support of 
health care liability reform.
  I have long been a major supporter of reforming our medical 
malpractice laws in an effort to stem the astronomical increases in 
health care costs. In fact, in the 108th Congress, I was pleased to 
offer my own amendment on health care liability reform called the 
Protect the Practice of Medicine Act.
  While my amendment was supported by the American Medical Association, 
the American College of Surgeons, and a number of other associations 
representing the men and women in our medical profession, 
unfortunately, a procedural move by opponents prevented my amendment 
from receiving an up-or-down vote.
  In fact, opponents of health care liability reform have been using 
procedural tactics in the Senate to prevent an up-or-down vote on this 
issue for years now. The consequences are grave: men and women, who 
have invested years of their lives training to become doctors and 
hundreds of thousands of dollars on their education, continue to leave 
the practice of medicine due to the high cost of malpractice insurance.
  Opponents of reform argue that the cost of medical malpractice 
insurance is stabilizing and that the increases in malpractice premiums 
are not as dramatic as they were a few years ago. The truth is that 
these premiums remain extremely high. Having rates stabilize does not 
mean that those rates have gone down. Time and time again, doctors come 
into my office and tell me that they are having a difficult time making 
a living and keeping quality staff because of the staggering amounts 
they are paying for medical liability insurance.
  I have received numerous letters from medical professionals in the 
Commonwealth of Virginia and from across the Nation that share with me 
the very real difficulties they are encountering with malpractice 
insurance and the consequences of this problem. Let me read part of one 
those letters that was sent to me by a doctor in Virginia. The doctor 
writes:

       I am writing you to elicit your support and advice for the 
     acute malpractice crisis going on in Virginia. . . . I am a 
     48-year-old single parent of a 14 and 17 year old. After all 
     the time and money spent training to practice OB/GYN, I find 
     myself on the verge of almost certain unemployment and 
     unemployability because of the malpractice crisis. I have 
     been employed by a small OB/GYN Group for the last 7 years. . 
     . . Our malpractice premiums were increased by 60 percent . . 
     . The reality is that we will not be able to keep the 
     practice open and cover the malpractice insurance along with 
     other expenses of practice.

  Out of respect for this doctor's privacy, I will not share the 
doctor's name, but I do keep her letter in my files.
  According to the American College of Surgeons, many surgeons are 
being forced to retire earlier, stop providing high-risk procedures, or 
move to States where strong medical liability reforms are in place.
  On March 16, 2006, Norfolk, VA's, newspaper, the Virginian-Pilot, 
featured the story of Dr. Shawne Bryant, an OB/GYN in Kempsville, VA. 
Dr. Bryant explained that she stopped performing surgery in 2003, 
citing high malpractice insurance rates. She redirected her talent into 
quiltmaking.
  Dr. Bryant, who has been in the field of obstetrics and gynecology 
for 21 years, said, ``I used to be in the operating room two to three 
days a week. This [quiltmaking] is an outlet for me because I'm still 
working with my hands.'' Since giving up the practice of surgery, 
Bryant has made eight quilts.
  Both Time Magazine and Newsweek have thoroughly detailed the crisis 
doctors are facing across America.
  In June of 2003, Time Magazine had a cover story on the affects of 
rising malpractice insurance rates. The story, entitled ``The Doctor is 
Out,'' discusses several doctors, all across America, who have had to 
either stop practicing medicine or have had to take other action due to 
increased insurance premiums.
  One example cited in Time's article is the case of Dr. Mary-Emma 
Beres. Time reports that, ``Dr Mary-Emma Beres, a family practitioner 
in Sparta, N.C., has always loved delivering babies. But last year 
Beres, 35, concluded that she couldn't afford the tripling of her 
$17,000 malpractice premium and had to stop. With just one obstetrician 
left in town for high risk cases, some women who need C-sections now 
must take a 40-minute ambulance ride.''
  Dr. Beres' case makes clear that not only doctors are being affected 
by the medical malpractice insurance crisis--patients are as well. With 
increased frequency, due to rising malpractice rates, more and more 
patients are not able to find the medical specialists they need.
  Newsweek also had a cover story on the medical liability crisis. That 
cover story was entitled ``Lawsuit Hell.'' I was particularly struck by 
the feature in this magazine about a doctor from Ohio who saw his 
malpractice premiums rise in one year from $12,000 to $57,000 a year. 
As a result, this doctor, and I quote from the article, ``decided to 
lower his bill by cutting out higher-risk procedures like vasectomies, 
setting broken bones and delivering babies--even though obstetrics was 
his favorite part of the practice. Now he glances wistfully at the 
cluster of baby photos still tacked to a wall in his office, `I miss 
that terribly,' he says.''
  Without a doubt, the cost of medical malpractice insurance premiums 
are having wide-ranging effects. It is a national problem, and it is 
time for a national solution.
  President Bush has indicated that the medical liability system in 
America is largely responsible for the rising costs of malpractice 
insurance. The American Medical Association and the American College of 
Surgeons agree with him, as does almost every doctor in Virginia with 
whom I have discussed the issue.

[[Page 7242]]

  Let me state unequivocally that I agree with our President, with the 
AMA, with the American College of Surgeons, and with the vast majority 
of doctors all across Virginia.
  I am pleased that S. 23, the Healthy Mothers and Health Babies Access 
to Care Act, reduces the excessive burden the liability system places 
specifically on the delivery of obstetrical and gynecological services. 
And I am pleased that S. 22, the ``Medical Care Access Protection Act 
of 2006'' or ``MCAP Act,'' extends liability protections to all health 
care providers and health care institutions.
  These bills are a commonsense solution to a serious problem, and it 
is time for us to vote up or down on this legislation.
  Mr. FEINGOLD. Mr. President, once again we are faced with ill-advised 
medical malpractice bills coming to the Senate floor without any 
committee consideration. Some argue that we have a malpractice 
insurance crisis that is driving doctors from the practice of medicine, 
particularly in the field of obstetrics and gynecology, or OB/GYN. But 
we haven't yet explored these issues in the Senate at all. No committee 
has held hearings or marked up a bill on this topic. Instead, extreme 
proposals have been brought directly to the floor and Senators are 
expected to vote for them. Indeed, motions to proceed to two different 
bills are being considered at the same time because no one really 
expects them to succeed. This is just a show. That is not how the 
legislative process should work on an issue of importance to so many 
people. I will vote no on cloture, as I have repeatedly in the past and 
will do in the future, until this issue is addressed in a serious way.
  I would like very much for Congress to address the problem of 
malpractice insurance premiums once we understand the causes of the 
problem and the effectiveness of the proposed solutions. But by 
bringing these bills directly to the floor, the majority simply 
demonstrates that it is not serious about addressing the problem. It 
just wants to play a political card. To the extent that there really is 
a malpractice insurance problem, what is going on here is a cynical 
exercise, designed only to fail and to provide fodder for political 
attacks.
  These bills, in my judgment, will not solve the problem that they 
supposedly have been designed to address. What they will surely do is 
harm innocent Americans who have suffered horrible and permanent injury 
at the hands of negligent medical practitioners.
  There are many provisions of S. 22 and S. 23 with which I have 
serious disagreement. Let me just mention a few. In a provision called 
the ``fair share rule,'' the bills eliminate joint and several 
liability in the lawsuits covered by the bills. What that means is that 
if one responsible defendant is insolvent and has no insurance 
coverage, the victim of malpractice ends up without a full recovery of 
his or her damages. This is not fair. Most state laws provide that the 
risk of one defendant being insolvent or judgment-proof is borne by the 
other responsible defendants. There is no reason to change this 
longstanding principle of law. All it does is make it more likely that 
injured mothers and children will not recover the damages that a court 
has decided they are due.
  Another problem with these bills is a new statute of limitations that 
applies only in States that are more protective of the injured party 
than the new Federal standard. Shorter statutes of limitation don't 
discourage frivolous claims, they encourage them. Lawyers facing a 
looming statute of limitations are more likely to file lawsuits to 
protect their clients' options. Imposing a statute of limitations of as 
little as one year, as these bills do, does not allow adequate time to 
investigate a case and determine if it really should be brought.
  But perhaps the most ill-advised provision in these bills is the cap 
on noneconomic damages. These caps have been modified from previous 
bills and are designed to look more generous, although they actually 
won't be in most cases. Indeed, it will be very rare for a plaintiff to 
reach the new maximum caps because most lawsuits don't name at least 
one doctor, and least two hospitals or other institutions as 
defendants.
  We have held no hearings on the medical malpractice issue in this 
Congress, but at the one hearing held on this issue in the last 
Congress, the Judiciary and HELP Committees heard from Linda McDougal, 
a 46-year-old Navy veteran from Woodville, WI. Several years ago, Ms. 
McDougal underwent a double mastectomy after her biopsy results were 
switched with those of another patient. She didn't have cancer, she 
never had cancer. We can be thankful for that. But her life, and her 
family's life, will never be the same.
  I hope everyone in the Senate will read Linda McDougal's testimony 
and learn about her experience. It is a powerful cautionary tale for 
those of us who are charged with voting on legislation concerning 
medical malpractice.
  I find it hard to believe that anyone in this body can look Linda 
McDougal or any of the thousands of victims of catastrophic medical 
malpractice in the eye and say, ``all your pain and suffering is worth 
only $250,000, or maybe $750,000 if you sue enough people.'' Would any 
of us be able to tell our mothers or our wives or our daughters that 
their damages should be limited in this arbitrary way if they were the 
victims of the unspeakable pain and lifelong sadness that Linda 
McDougal will endure? Remember, Linda McDougal didn't have 
extraordinary medical bills or lost wages. Her damages are noneconomic. 
But her loss is real, it is permanent, it is unfathomable.
  There is no question that we have a problem in this country over the 
cost of malpractice insurance. But the solution cannot be to penalize 
innocent victims like Linda McDougal, to prolong and extend their 
suffering by denying them adequate compensation.
  Caps on noneconomic damages are a cruel hoax. They are advertised as 
a disincentive to frivolous lawsuits. But they have the most impact on 
the most serious and nonfrivolous cases, cases where unimaginable pain 
has been inflicted on someone by a careless health professional.
  In addition, we have virtually no evidence that caps on economic 
damages will actually lower insurance rates. Indeed, in States that 
have caps on noneconomic damages, insurance premiums increased 48 
percent from 1991 to 2002. But in States without caps, the increase has 
been only 36 percent. So the case has simply not been made that the 
caps in this bill will lower malpractice premiums. But more 
importantly, the case has not been made, and in my view cannot be made, 
that these caps are fair to victims like Linda McDougal.
  There very well may be solutions that we in the Senate can develop to 
address the cost of medical malpractice insurance in this country and 
the effect on patient care that rising premiums are causing. And there 
certainly are things we can do to address the disturbing problem of 
medical error in this country. The Institute of Medicine estimates that 
between 44,000 and 98,000 adverse medical events occur in hospitals 
every year. Other studies suggest that those numbers may be a vast 
underestimate.
  If we want to reduce malpractice insurance premiums we must address 
these problems as well as looking closely at the business practices of 
the insurance companies. What we shouldn't do is limit the recovery of 
victims of horrible injury to an arbitrarily low sum.
  This is obviously a complicated issue. This is the kind of issue that 
needs to be explored in depth in our committees so that a consensus can 
emerge. It is certainly not the kind of issue that should be brought 
directly to the floor with such a great gulf between supporters and 
opponents. So I will vote no on cloture today on both S. 22 and S. 23, 
and I hope that these bills will go through the HELP Committee and the 
Judiciary Committee before we begin floor consideration of this 
important topic.


                             Cloture Motion

  The PRESIDING OFFICER (Mr. Burr). Under the previous order, pursuant 
to rule XXII, the Chair lays before the Senate the pending cloture 
motion, which the clerk will report.

[[Page 7243]]

  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the standing rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to S. 22: A bill 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.
         Bill Frist, Johnny Isakson, Sam Brownback, John Thune, 
           Thad Cochran, Wayne Allard, John Ensign, Pat Roberts, 
           Larry Craig, Ted Stevens, David Vitter, John McCain, 
           Lamar Alexander, Norm Coleman, Judd Gregg, John Sununu, 
           Craig Thomas.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 22, a bill to improve patient access to health 
care services and provide improved medical care by reducing excessive 
burden the liability system places on the health care delivery system, 
shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Kansas (Mr. Brownback), the Senator from Montana (Mr. 
Burns), the Senator from Oklahoma (Mr. Coburn), and the Senator from 
Arizona (Mr. McCain).
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Illinois (Mr. Durbin), the Senator from Vermont (Mr. 
Jeffords), the Senator from Illinois (Mr. Obama), the Senator from West 
Virginia (Mr. Rockefeller) are necessarily absent.
  I also announce that the Senator from North Dakota (Mr. Conrad) is 
absent due to illness in the family.
  I further announce that, if present and voting, the Senator from 
Delaware (Mr. Biden) would vote ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 48, nays 42, as follows:

                      [Rollcall Vote No. 115 Leg.]

                                YEAS--48

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burr
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     Martinez
     McConnell
     Murkowski
     Roberts
     Santorum
     Sessions
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--42

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Crapo
     Dayton
     Dodd
     Dorgan
     Feingold
     Feinstein
     Graham
     Harkin
     Inouye
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Salazar
     Sarbanes
     Schumer
     Shelby
     Stabenow
     Wyden

                             NOT VOTING--10

     Biden
     Brownback
     Burns
     Coburn
     Conrad
     Durbin
     Jeffords
     McCain
     Obama
     Rockefeller
  The PRESIDING OFFICER. On this vote, the yeas are 48, the nays are 
42. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.

                          ____________________