[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[House]
[Pages 17-24]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          AMERICAN HEALTH CARE

  The SPEAKER pro tempore (Ms. Lee). Under the Speaker's announced 
policy of January 18, 2007, the gentleman from Texas (Mr. Burgess) is 
recognized for 60 minutes as the designee of the minority leader.
  Mr. BURGESS. Madam Speaker, I come to the House floor tonight to 
talk, like I often do, a little bit about health care. And this is the 
first day that the Congress is back in session after the December 
recess. And legitimately, someone might ask is it maybe a little early 
to begin this type of discussion. But the reality is, since we didn't 
finish our work in the last year, it is entirely appropriate for us to 
begin this year talking about some of those same things that were left 
undone at the end of 2007. Specifically, the reauthorization of the 
State Children's Health Insurance Program. An 18-month extension was 
passed at the end of the last Congress. I was grateful for that. I 
voted in favor of that. But the reality is this Congress should do its 
work and reauthorize this program for the full 10 years as it was 
intended when the reauthorization was up last September.
  We had a lot of opportunities to do this in my committee, the 
Committee on Energy and Commerce, but we failed to have a markup in 
subcommittee. We had a markup in full committee that was little more 
than a charade. We brought a very bad bill to the House floor in 
August. It was passed, but was not taken up by the Senate because the 
bill was so flawed.
  Then we had the Senate bill come to the House floor and it was a new 
bill, not a conference committee report. We had ample opportunity to 
debate that and take it back to committee and have a subcommittee 
hearing and subcommittee markup, a full committee hearing and a full 
committee markup, but we chose not to do that. We brought that same 
bill to the floor and voted on it. The House passed because they have a 
majority on the other side, and the President vetoed it and the veto 
was sustained.

[[Page 18]]

  The same bill was brought up a second time in early October. The same 
result. The bill was passed, and the bill was vetoed and the veto was 
sustained.
  In the interim, many of us worked to try to overcome some of the 
obstacles to passage for this bill because we felt this was the correct 
thing to do. But the reality was that politics trumped policy. And at 
the end of the day, the best we could muster, at the end of December, 
at the very last minute, was to pass an 18-month extension.
  Madam Speaker, perhaps I should be grateful for that, because with an 
18-month extension we will be past the next Presidential election 
before we are forced to look at this bill again. But I hope this 
Congress does not take that tactic. I hope this Congress takes 
seriously its obligation to study this problem and find out where the 
difficulties occurred last time and see if we can't come to the floor 
with a bill that could be broadly supported by both sides of the aisle. 
I think that is a possibility. But the reality, again last fall, some 
people thought the politics were more important than the policy. And 
the end result, well, we saw what the end result was.
  The same thing happened with our Medicare proposals. We have every 
year this mad scramble at the end of the year. If Congress doesn't do 
something because of the odd formulas by which we pay physicians in 
this country, physicians that we have asked to take care of our 
Medicare patients, but we have a very odd formula by which we reimburse 
those physicians. And as a consequence, every year at the last minute 
we are left scrambling, seeing if we can't do something. It is called 
the physician fix. It is almost like something that will happen on the 
winter solstice every single year, because if we don't do something by 
January 1, massive pay cuts are administered to the physician corps in 
this country. Again, the very physicians whom we have asked to take 
care of some of our sickest and most complex patients, and these 
physicians this past year faced a 10 percent pay cut.
  Now, at the last minute, we did do something to forestall the pay 
cut. We passed a rather modest bill to give a one-half percent positive 
update to physicians who take care of Medicare patients. But we only 
did it for 6 months' time, which means we literally kicked the can down 
the field. And the reality is we will have to face this again in June. 
And guess what? The deeper we go into this year, the more politics will 
take over, because it is a Presidential election year, and it is a 
Presidential election year the likes of which this country has not seen 
since 1952, or perhaps even 1928, when both sides are running for 
essentially what is an open seat in the United States Presidency.
  Well, I did come to the floor tonight because I wanted to have a 
candid conversation about health care. I think many in this Congress 
know I had a life before Congress. I was actually a practicing 
physician for 25 years back in my home State of Texas. So I feel I can 
approach this problem from both the provider level, on the basis of 
that 25 years in practice, as well now as the policymaking level, the 
legislative level, because obviously we do deal with a lot of health 
care here on the floor of the House of Representatives.
  I want to talk in some greater detail about the issues pertaining to 
Medicare, and I will get to that, but let me step back and talk about 
where the status of health care is in this country, because when you 
watch the Presidential debate, it seems everyone is talking about 
health care. Perhaps that is a good thing. In reality, the conflict in 
Iraq is not as divisive as it was a year ago. And as a consequence, you 
hear less talk about this country's involvement in Iraq. And as a 
consequence, you hear more talk about domestic issues. Health care and 
the economy have replaced some of the rhetoric that we heard during the 
2006 fall election and some of the rhetoric that we heard on the floor 
of the House a scant year ago regarding this country's foreign policy. 
In reality, that is a good thing.
  It is a strange phenomenon when this country is prevailing in a 
conflict that we stop talking about it. I can't think of any other time 
in American history when that was the mindset. Nevertheless, that is 
what is occurring now. Again, as a consequence, we are talking a good 
deal more about health care.
  When you hear the talk about health care out on the campaign trail, 
you recognize there are some fairly different ideas that are out there 
and being talked about. And it is not that one person has any quarter 
on the best ideas, but it certainly lays the issue at the feet of the 
American people that there are very different ways of dealing with this 
problem, very different ways of setting the goal, very different ideas 
about what the goal should be, and obviously very, very different ideas 
about how to accomplish that.
  In fact, there is a lot of discussion about should we talk in terms 
of reform of our system of health care or is, in fact, the situation 
beyond the reform and we need to talk about actually transforming our 
method of health care in this country. And we will hear that debate 
play out. We will hear talk about things like mandates and universal 
coverage. Those are debates we should have at the national level, and 
those are debates where there should be broad participation.
  Madam Speaker, we lost a very good friend in Texas at the end of 
December. Ric Williamson was the chairman of our Texas Department of 
Transportation. He died rather suddenly at the end of year, an 
individual who was younger than I am; so needless to say, it was 
unexpected. During the memorial service that was held for Mr. 
Williamson later that week, a lot of discussion of how he had been a 
State legislator before he took the position with the Texas Department 
of Transportation, and many of his friends and former colleagues got up 
to talk about Ric Williamson's life. And almost to a person they talked 
about how Ric Williamson regarded politics as a full contact sport. 
That is you went at it with everything you had, but you do it openly. 
You do it in the committee room. You do it in the light of day. You 
don't do it behind closed doors in some secret conference in the middle 
of the night and cut a deal one side with the other.
  That is what this debate should be. It may be hard. We may come at 
each other again with full body contact in this debate, but it should 
be done on the floor of the House. It should be done on the floor of 
the committee rooms and not in a back room where a deal is cut at the 
last minute.
  Many options face us in this country. And again, we will hear a great 
deal of debate about things like universal coverage and mandates. We 
will hear a great deal about things like do we in fact craft policies 
that people actually want, or do we decide what policies people want 
and then administer them accordingly.
  But, Madam Speaker, freedom is the foundation of life. In my home 
State of Texas, that is very much the case. We thrive on unlimited 
options. Two years ago when we had the great Medicare part D debates, I 
remember at first there was a lot of criticism that no one will sign up 
to deliver these plans. There will be no plans. There will be a default 
government plan.
  So guess what happened? In my home State of Texas, we had 45, 46, 47 
companies sign up to provide these drug plans. And then we were told 
there were too many choices. The reality is Americans thrive on 
choices. And choices are what this debate, in my opinion, a lot of what 
this debate should be about. It is what has made this country great. 
And, in fairness, it is what has made, at least from a scientific 
basis, the health care in this country the envy of the world.
  Well, again, the same kinds of options are going to be out there 
facing Americans during the debates, and I urge them to pay attention 
at every level. I know I must direct my remarks to the Chair, Madam 
Speaker, but if I could speak directly to the American people, I would 
encourage them to pay a great deal of attention to what is talked 
about, who is offering what, are they believable, and, in the end, do 
we think anything will really change no matter how many times they 
mention the word.
  When it comes to innovation, the United States of America is

[[Page 19]]

undisputably the world's leader. In the last 25 years, 17 of the past 
25 Nobel Prizes in medicine have been awarded to American scientists 
working in labs. That is a phenomenal record. Four out of the six most 
important discoveries of the last 25 years have occurred in this 
country, things like advanced scanning techniques, things like statin 
drugs to lower cholesterol, things like coronary artery stints and 
bypasses, things that have extended life to citizens who 30 years ago, 
quite frankly, there might not have been any help, there might not have 
been any hope.
  Now, innovations can improve health and life expectancy. It certainly 
does not mean that can't improve on a good thing, that we step back and 
rest on the accomplishments that are already there. But it certainly 
means in the environment that we provide in this country, quite 
honestly an environment that tolerates uncertainty from time to time, 
an environment that rewards risk-taking from time to time, that 
environment is a good thing for the furtherance of the science of 
medicine and ultimately a good thing for health care in this country.
  Madam Speaker, one of the lead articles in this week's New England 
Journal of Medicine, and I apologize, I have forgotten the author's 
name. I just read it briefly on my way up here this morning, but it 
talked about how doctors now need to be prepared for a patient coming 
into their office and saying, I just had extensive genetic testing done 
on my own at a low cost, and now I have some information about my own 
human genome, and I would like you to help me interpret that.

                              {time}  2100

  Indeed, that day has arrived. And doctors in this country do need to 
be aware of these changes and do need to be prepared to answer their 
patients' questions and provide insight and direction where insight and 
direction occur, and be able to provide the type of environment that 
will allow continued learning about this new science that has just 
arrived on our doorstep.
  Two companies now offer genetic testing, genomic testing, more 
appropriately, simply taking a swab of the inside of a cheek and 
sending it off to a company and waiting a few weeks and they come back 
and tell you all kinds of things about what your genomic makeup is.
  Madam Speaker, when I think back to when I first entered the doors of 
Parkland Hospital in July of 1977, I would have never believed, never 
believed that this type of technology would be available in my 
lifetime, let alone that this type of technology would be available for 
a reasonable cost, and such a reasonable cost that people just simply 
elect to have it done to find out a little bit more about themselves 
and perhaps underscore some risk factors that they already knew were 
there and perhaps alleviate some concern about risk factors that may 
not carry the weight that the patient thought they did.
  It's a phenomenal time that we've entered into, truly a 
transformational time in medicine.
  And it has happened before. During the last century, I can think of 
three times when the scientific advances were so rapid and so solid, 
and at the same time, there was so much social change brought by bodies 
that legislate, bodies that govern, that the practice of medicine was 
forever changed.
  Look what happened back around 1910. We were coming from a time where 
blistering, burning and bleeding were thought to be the peer-reviewed, 
the evidence-based proper treatments to administer to patients who were 
in distress. And very abruptly, the world changed. And the world 
changed because we found out more about the practice of anesthesiology. 
The world changed because we found out a little bit about blood-
banking. The world changed because we found out a great deal more about 
the science and manufacture of vaccines. And then at the same time when 
all of that science was consolidating in the practice of medicine, we 
had the Flexner Commission and subsequently the Flexner Report 
commissioned by the United States Congress. And those activities now 
administered more at the State level; but suddenly we had that 
consolidation of medical school curricula across the country. Medical 
schools used to be able to teach all manner of things. Suddenly, they 
were conscripted or somewhat conscribed in what they could teach, but 
they began to teach evidence-based scientific fact in the medical 
schools. And it was just at the right time, because the scientific body 
of information was changing very rapidly.
  And if we fast forward to the middle of the 1940s, a country at war, 
10 or 12 years before, Sir Alexander Fleming had found an unusual 
curiosity in his laboratory petri dish: a penicillin mold could inhibit 
the growth of bacteria. Well, that was an astounding discovery, but it 
was really little more than a laboratory curiosity until an American 
company came up with a method of producing large quantities of this 
substance that inhibited bacterial growth, and thus began the modern 
pharmaceutical industry in this country. But it was a good thing, 
because we were a country at war. And, indeed, that infection-fighting 
antibiotic went from a laboratory curiosity that was intensely labor 
intensive to produce and intensely expensive to administer, and it went 
to something that was available to the average person in this country. 
And, indeed, antibiotics were available to treat our soldiers who were 
injured during the landing at Normandy, and I dare say many life and 
limb were spared because of the availability and the inexpensive 
availability of that antibiotic.
  Another rather astounding scientific accomplishment that occurred at 
the same time, cortisone had been discovered several years before but 
cortisone was not commercially available. The way they got cortisone 
back then was to extract it from the adrenal gland of an ox. Well, if 
the ox was not anxious to give up their adrenal gland, you can imagine 
that was a pretty labor-intensive process.
  But an individual that we honored on the floor of this House during 
the last Congress, Dr. Percy Julian, a Ph.D. biochemist, came up with a 
way of producing cortisone from a plant precursor, from a soybean 
precursor. Again, same situation: Suddenly you had a medicine that was 
profoundly useful, but only in limited application because it was so 
expensive and so hard to obtain in the amounts necessary to treat a 
patient, and now suddenly it was readily available and it was available 
at a very low cost because it now could be mass produced.
  Well, these two striking phenomena occurred in the 1940s. And what 
else happened in the 1940s? Again, we're a country at war. The 
President wanted to prevent an inflationary spiral, or an inflationary 
cycle; so he enacted wage and price controls. Employers wanted to keep 
their employees working. They didn't want someone else stealing their 
employees away, because employees were at a premium. The vast majority 
of Americans were off involved in fighting the war. So employers came 
up with the idea of maybe let's offer some fringe benefits, health 
insurance, retirement benefits. And wait a minute. Don't think we can 
do that because of the wage and price controls. But a court case 
ensued, as so oftentimes happened, and the Supreme Court ruled that 
indeed these benefits could be offered, and not only were they not in 
violation of the wage and price control statutes, but they also could 
be administered as pre-tax expenses. So suddenly we had the vast social 
change of employer-derived health insurance arriving rather suddenly in 
the 1940s; and at the same time you, doctors, for the first time in the 
history of medicine had a cheap, inexpensive way of combating infection 
and treating people with other inflammatory conditions with cortisone.
  Again, fast forward to the 1960s. Big changes were on the horizon. In 
fact, in 1945, President Roosevelt died of malignant hypertension, died 
of a stroke.
  In the mid-1960s we were beginning to develop medicines that treated 
accelerated hypertension, or malignant hypertension. We were developing 
medicines that could treat psychoses. We were developing the first 
medicines that were now known as antidepressants; a lot of changes on 
the horizon.

[[Page 20]]

  And what else changed in the mid-1960s? For the first time, the 
Federal Government got involved in a big way, in a big way, in paying 
for health care with the passage of Medicare in 1965 and, subsequently, 
Medicaid thereafter. And now we're at a time in our country's history, 
where almost 50 cents out of every health care dollar that's spent 
originates right here on the floor of the House of Representatives, 
because of the vast expansions of the expenditures in Medicare, 
Medicaid, VA system, Federal prison system, Indian Health Service, a 
lot of different ways where the Federal Government has a participatory 
role in health care, one that quite frankly was never envisioned 40 
years ago.
  So the world indeed has changed because of some of the social changes 
that was brought about by changes in this Congress.
  Well, I submit, Madam Speaker, that the world of medicine is on the 
brink of another such transformational change. I've already alluded to 
the changes that are going to happen in the realm of genomic medicine, 
a lot of advances in the types of scanning that are available, the 
types of imaging that are available. Medical care in this country is 
going to become a great deal more personalized with the development of 
genomic medicine. It is of necessity going to be more participatory, 
but at the same time more preventive. And these are good things. These 
are reasons to make one excited about a career in health care and in 
some ways I'm envious of the young people today who look up from their 
desk in high school or college and say, I want to do that; I want a 
career in health care. I know it takes a long time. I know the 
government's interfering at a lot of different levels, but I want a 
career in health care because it's so exciting. And there's still that 
basic altruistic feeling inside of a lot of us in health care that we 
want to do that because it's the right thing to do.
  Well, we are on the cusp of a true transformational time in health 
care in this country. Now, can Congress properly interact with that 
transformation as it occurs? It's very difficult, and our history is 
not great in that regard because Congress is inherently a transactional 
body. We take money from here and we move it over here. We create 
winners and losers in this system. And all too often the transactional 
can be the enemy of the transformational. And it is our job, our job, 
every one of us who sits here in a seat in this House of 
Representatives, to ensure that our transactional bias does not 
interfere with the transformation as it's occurring under our very 
feet.
  Congress can't legislation the transformations going on in health 
care. It's happening anyway. It's happening whether we want it to or 
not. But Congress can certainly interfere with that transformation if 
we don't set the proper regulatory tone, if we don't provide the proper 
liability environment, if we don't provide the proper incentives. 
Congress can actually be the enemy of transformation.
  And, Madam Speaker, there are several more things that I want to 
cover this evening. But I see I'm joined by one of my colleagues, one 
of my colleagues in the House of medicine as well as one of my 
colleagues in the House of Representatives. And I would like to yield 
to the gentleman from Georgia such time as he may consume to likely 
address the issue of medical liability, because that is a big aspect of 
when we talk about health care reform in this country. It's a big part 
of the equation. So I'll yield to my friend from Georgia.
  Mr. GINGREY. Mr. Speaker, I thank the gentleman from Texas, my 
colleague; and as he pointed out, we're both in our prior life MDs and 
both in the same specialty, OB/GYN. I practiced a little bit longer 
than the gentleman from Texas, Dr. Burgess; but we certainly know of 
what we speak in regard to the stress and strain of everyday life, a 
work day in a physician practice across this country, whatever 
specialty it might be.
  I was listening in my office just a few minutes ago, Mr. Speaker, to 
the gentleman from Texas, Dr. Burgess, as he talked about some of the 
things that we failed to do in the first session of this 110th Congress 
last year, 2007. He started off his discussion talking a little bit 
about that, the SCHIP program. I think most people, all of our 
colleagues of course, understand SCHIP is an acronym for State 
Children's Health Insurance Program, as Representative Burgess pointed 
out, enacted 10 years ago. It was a good, a good program. I think 1997, 
a 10-year authorization for this program, and it would expire. We 
wanted to see, of course, how it would work, was it going to be a good 
thing. So when you put sunsets on programs that makes sense, because 
sometimes ideas don't turn out so good. But this one really did.
  And the basic concept, Mr. Speaker, as we all know, was to try to 
help parents have health insurance for their children when they were in 
a situation where their income was too much to qualify for safety-net 
programs, in particular the Medicaid program; they were making more 
than that minimum amount. But, yet, in no way were they coming close to 
having enough income, discretionary income to pay even their portion of 
a health insurance premium for their children if their employer 
happened to cover part of it. And, of course, many didn't.
  So this program was a wildly successful program covering about 6 
million children a year, Mr. Speaker, and spending about $5 billion a 
year in the process. And it was a Federal/State matching program, more 
generous on the part of the Federal Government, the taxpayers across 
this country, than the Medicaid program, which was more a 55/45 
sharing. The SCHIP program was a better deal, if you will, for State 
governments. And it worked so well, of course, that there were 6 
million children covered, I stated, and it was estimated that in some 
States that there were children that were falling through the safety 
net and not getting the coverage because States like my own of Georgia, 
and my own district, the 11th of Georgia, we were running out of money.
  So I think clearly, as this program came to its expiration date this 
past year, everybody in this body, in this House and in the other body, 
in the Senate, I think all 435 Members realized we wanted to 
reauthorize this program and we needed to spend a little bit more money 
to make sure that those children that were eligible, needed the 
coverage, there would be enough money available for them.

                              {time}  2115

  Most people estimated that about 1 million additional children, 
750,000 to 1 million children, we have some of them in the State of 
Georgia, needed that coverage. So President Bush in his wisdom said 
let's reauthorize this program and let's increase the spending by 20 
percent, and I thought that was a pretty generous thing; that would 
cover these additional children.
  But as Dr. Burgess pointed out, Mr. Speaker, the Democratic majority 
came to the floor with a bill that was not even vetted in committee, 
certainly no Member of the minority party had much chance at all to see 
this bill, that wanted to increase coverage to up to 10 million 
children. Now, we were covering 6 million, and they arbitrarily wanted 
to increase that coverage to 10 million. So that's an additional 4 
million children, Mr. Speaker, when by anybody's estimate there were no 
more than 1 million that were in this range that warrant getting 
coverage.
  So I honestly believe that the Democratic majority wanted to bring 
forward a piece of legislation that in no way could any fiscally 
responsible Member of this body vote in favor of. And it's hard to 
stand up here and say what people's motives are, but I think the 
gentleman from Texas alluded to it earlier. There are a lot of politics 
involved in this one, Mr. Speaker, and of course, here we are now, we 
ultimately we have an 18-month extension. But we need to come together. 
This is just a perfect example, in the health care arena in particular, 
where we can and should come together in a bipartisan way to do things 
for the benefit of the American people to provide better health care.
  We like to tout that we have the greatest health care system in the

[[Page 21]]

world. Maybe we do. But sometimes I wonder, and clearly, I think there 
are things that we could do in a bipartisan way to improve it, and Dr. 
Burgess has mentioned it. He's talked about the payment formula, that 
flawed formula, in regard to paying our physicians, and so it's no 
surprise that not only are more and more of them unwilling to accept 
Medicare patients because they're not even being reimbursed enough to 
cover their expenses, there's no surprise to me when I picked up the 
Sunday newspaper, the Atlanta newspaper in my hometown of Marietta this 
past weekend, and there's this big full page ad where one of the chain 
drugstores is now opening up these clinics, manned and ``womanned'' by 
men and women who are not MD's, but they're nurse practitioners. 
They're very skilled. They're trained. They certainly are dedicated, 
and the fees for seeing them are anywhere from $60 to $75 for a 15- or 
20-minute visit.
  So what you're seeing is so much of medicine is not an MD providing 
the care. It's these situations like these drop-in clinics in chain 
drugstores. I don't think this is the way it should be, and I think we 
can do things like enact tort reform to take some of the pressure off 
of the physicians so that there's not so much defensive medicine. And 
of course, that runs up the costs tremendously.
  Tort reform is hugely important. Dr. Burgess and I, Mr. Speaker, have 
worked very hard in the 5 years into our 6 years as Members of this 
body trying to get that passed. We have been trying to get association 
health plans where people can come together in an industry and purchase 
health insurance across State lines, free of all these mandates of the 
individual States. Fifty different States have all these mandates on 
health insurance policies that drive up the premiums.
  I thank Dr. Burgess for taking the time tonight on our first day back 
in this second session of the 110th to continue to talk about health 
care. This is clearly a passion of his. It's certainly a passion of 
mine, not just physician Members of this body, but a lot of very, very 
good, experienced Members who are concerned with this.
  Before I yield the time back to my colleague and I continue hopefully 
during the remaining time tonight to engage in a colloquy with him on 
these issues, I think one of the most important things we could do and 
we could do it now is to enact electronic medical records, say a 
complete fully integrated system and incentivize doctors. We can do it 
through the tax code to give them an opportunity, particularly the 
small group practices, the primary care physicians so they can get 
electronic medical records. This would clearly save a lot of the money 
that Dr. Burgess was talking about. My friend has done some good work 
on that in his committee assignment on Energy and Commerce, Health 
Subcommittee, as well as the ranking member there, my colleague from 
Georgia, Representative Nathan Deal. We'll continue the discussion.
  Mr. BURGESS. I appreciate my friend coming to the floor tonight. In 
fact, let's stay on the concept of electronic health records, 
electronic medical records for just a moment.
  I have a confession to make to my friend from Georgia. I haven't 
always been a big proponent of electronic medical records. There has 
been some debate from time to time in our literature as to whether the 
savings is actually as great as what is anticipated. I've used the two 
separate prescribing platforms in my private practice back in 
Lewisville, Texas, with sort of marginal success, but became a believer 
in the availability of an electronic medical record sometime after 
Labor Day in 2005.
  And the reason I became a believer was because after Hurricane 
Katrina ravaged the Louisiana and Mississippi gulf coasts, I had an 
opportunity on several occasions to travel to the city of New Orleans. 
In January of 2006, in fact, we had a field hearing in New Orleans. As 
part of that field hearing, we visited Charity Hospital, Charity 
Hospital one of the venerable old hospitals in this country, one of the 
hospitals that is responsible for training some of our medical 
pioneers. In fact, through good fortune, I had a chance to sit down 
with Dr. DeBakey late last fall, and he talked a little bit about his 
time of training in the city of New Orleans.
  Charity Hospital, again, one of the venerable old institutions, now 
likely lost to us forever. And down in the basement of Charity Hospital 
was a room that had been underwater for weeks. In fact, there was still 
water on the floor. This photograph doesn't really do that justice. 
There was still water on the floor after the city had been dewatered. I 
didn't know ``dewatered'' was a verb. But after the Corps of Engineers 
had dewatered the city and they were able to go back down to the 
records room of Charity Hospital, this is what they encountered. These 
are records that had been submerged for weeks in brackish water, water 
contaminated with goodness knows what, and what we see here is now 
smoke or soot damage on these medical records. This is, in fact, black 
mold that is growing on the medical records. And the reality is you 
could not send anyone in there to retrieve this information because it 
would simply be too hazardous, but also, the records themselves had 
been submerged for weeks at a time in seawater, brackish water, and the 
ink itself, many of these records were written in ballpoint pen by 
people over decades. And that ink washed off the pages so those that 
aren't ruined by the black mold are rendered illegible. Doctors' 
handwriting is hard to read anyway, but you submerge it for several 
weeks in brackish waters, and it truly becomes something you cannot 
read.
  Mr. GINGREY. I also had an opportunity over that Labor Day weekend to 
go down on an angel flight to Baton Rouge and to try to help man, staff 
an emergency Red Cross clinic there. I think it was called the River 
Center, a huge clinic that had been set up. And as we began to see 
patients, I realized the enormity of this situation, as Dr. Burgess 
points out with his poster. One patient in particular was HIV positive 
and seven months pregnant and had not received any medication, 
retrovirus medication in 2 weeks, and this is the kind of thing that is 
life or death.
  This situation in New Orleans really pointed it out. But suppose 
someone from this country is traveling in another country where they 
don't speak the language, and all of a sudden some catastrophic event 
occurs, a stroke, where the person cannot communicate. There's no way 
that the physicians, no matter how skilled they might be in the 
emergency room, and in the Ukraine they're not going to be able to take 
care of somebody from the United States that cannot communicate.
  But with electronic medical records, it's just a matter of a swipe of 
a card, just like you do your American Express card where the radio 
frequency, identification system, secure, absolutely secure, privacy 
maintained, guaranteed, a system set up by our Federal Government where 
the standards are the same across the board. It, without question, 
would save a tremendous amount of money. The Rand Corporation estimates 
something like $175 to $200 billion a year out of that $1.6 trillion 
medical expenditures each year, $200 billion savings. But more 
important than the cost saving, of course, is the life savings aspect 
of it.
  So I'm so glad the gentleman from Texas (Dr. Burgess) brought that up 
and showed that very, very telling poster.
  Mr. BURGESS. Let me just point out, though, one aspect of the Federal 
Government's involvement in electronic medical records and one of the 
reasons we have to be so careful.
  When I said earlier that the Congress, being a transactional body, 
can sometimes be the enemy of transformation, a year ago a lot of us 
heard stories about some difficulties out of Walter Reed Hospital here 
in the city of Washington, DC.
  And I traveled out to Walter Reed and visited that Building 18, and 
indeed, there were some significant problems. But the young man who 
showed me around Building 18, Master Sergeant Blades, said, You know 
what's really, really at the heart of a lot of

[[Page 22]]

this frustration is that my guys here on medical hold have to go 
through their medical records. They will go through this long arduous 
process of compiling their record, yellow highlighting the important 
features, all done on paper, and that will be delivered to someone's 
desk where it sits for 2 weeks and then gets lost, and they've got to 
start all over again, which increased the frustration to be sure, but 
also increased the time that these young men who were at Walter Reed on 
medical hold trying to decide whether they went back with their unit or 
whether they were going to be discharged and cared for in the VA 
system, while all of that was sorted out, the paper record did indeed 
seem to be an impediment to that process.
  But we do have an electronic medical record system at the VA, and one 
I've never used it myself, the Vista system, multisource software. I 
understand it works very well. And we also have an electronic medical 
record at the Department of Defense, but the problem is that the two 
won't talk to each other, and as a consequence, our soldiers are caught 
in between. And the result, at least a year ago at Walter Reed 
Hospital, was concerning to many of us here, and it has taken a good 
deal more time than I would have thought necessary to get this problem 
solved to bridge that gap between one set of electronic medical records 
and another.

                              {time}  2130

  So we do have to be careful at the Federal level. We don't always 
have the best solutions.
  So sometimes what our approach needs to be is to provide the right 
regulatory environment, to provide the right liability environment, to 
provide the right incentives, perhaps establish some standards, as Dr. 
Gingrey said, and then get out of the way and let the people who know 
how to develop these things actually be in charge and not have Members 
of Congress responsible for writing software.
  The gentleman also brought up some very good points about the formula 
by which we reimburse physicians under the Medicare system. I thought 
the gentleman would enjoy seeing, and I know I'm not supposed to go 
through this because I'm accused of being too much into the process, 
but this is the formula by which we pay physicians, by which we 
reimburse physicians under Medicare. It's called the Sustainable Growth 
Rate Formula. It's been around for a while. It looks a little daunting, 
but it's, perhaps, understandable when you look at it. We have a 
relative value unit for work, plus a geographic modifier, another 
relative value unit for practice expenses and another geographic 
modifier, and a relative value unit for liability insurance, and a 
geographic multiplier.
  And then we see all these terms defined here. There is actually a 
misprint on this page, and it's the fault of the Congressional Research 
Service, not the person who made this poster for me. But it's almost 
applied at the end by CF, which is a conversion factor, referred to 
here as CV, the conversion factor. Well, that's an interesting thing. 
How do we get the conversion factor? Well, we've got to go to another 
formula. And here we're going to be able to calculate the conversion 
factor. And I won't go through all of this because I'm told I 
shouldn't, but at the very bottom of the page you see we need to know 
the UAF before we can calculate the conversion factor, the update 
adjustment factor. And how do we get the update adjustment factor? I'm 
glad you asked. The update adjustment factor is here, yet another 
formula.
  Now, I don't show these to impress people with my ability to go 
through the mathematical formula, but I do use this to point out that 
the system by which we reimburse physicians, it needs some attention.
  Mr. GINGREY. If the gentleman will yield, I will point out that my 2 
years of calculus at Georgia Tech, when I was getting that degree in 
chemistry, has not helped me one bit with figuring out this formula. So 
I appreciate the fact that the gentleman agrees it is an absolutely 
impossible, arcane system to ever figure out. And how they came up with 
it is Greek to me.
  I yield back to the gentleman.
  Mr. BURGESS. I thank the gentleman for yielding.
  And here's the deal with this formula: What it results in is a vastly 
different universe for physicians who are providing care to our 
Medicare patients when you compare them with hospitals, nursing homes, 
HMOs, drug companies. Each one of those entities receives a positive 
update every year based on, guess what? It's kind of like a cost-of-
living adjustment; it's called a market basket update. The physicians 
formula, though, unless Congress intervenes, which it did on every one 
of these years, unless Congress intervenes, this adjustment factor is 
going to go down, and it's projected to go down year over year for the 
next 10 years' time to the tune of approximately 35 to 37 percent, 
clearly an untenable factor.
  You know, if a doctor goes into his banker's office and says, here is 
my business plan, Mr. Banker, and I want you to help me get my business 
established, I've got this business plan where I'm going to earn about 
10 percent less each year over the next 10 years' time, do you think 
you will be able to fund me some money? No, sir, I don't think that 
would happen. In no business would we ask someone to stay in business 
where the cost of reimbursement is going to go down year over year. And 
we all know, is it going to cost any less for energy to heat and cool 
that physician's office over those years? No. The answer is, of course 
not. Is it going to cost any less to have the employees in the office? 
Is it going to cost any less for the liability insurance? And the 
answer is ``no'' to all of those questions.
  Mr. Speaker, I know we're running a little short on time, but I 
wanted to give the gentleman from Georgia a chance just to talk a 
little bit about what is happening in the arena of liability reform in 
the House of Representatives, because I know that is an issue that's 
been important to both of us.
  We have done some things in Texas over the last 4 years' time which I 
think, from my perspective, have been very positive. There are other 
concepts out there that are talked about, concepts such as medical 
courts, concept such as earlier offer. We had a bill similar to the 
Texas bill that came through the House of Representatives, as the 
gentleman pointed out, for the 108th and 109th Congress; but I would 
like to yield to the gentleman just for a moment to talk a little bit 
about liability reform.
  Mr. GINGREY. I thank Dr. Burgess for yielding.
  Mr. Speaker, the issue of medical liability reform is something that 
we've been talking about for a long time in this House of 
Representatives and in the other body, and it's time that we do 
something about it. I remember back in 2004, during the Presidential 
debate between our current President Bush and the Democratic nominee, 
Senator Kerry, and on one particular debate they were talking about the 
cost of medical malpractice insurance. And Senator Kerry made the 
statement that, well, you know, if a doctor has to pay $40,000, $50,000 
a year, some can afford it; that's just a very small amount in the big 
scheme of things. And I thought President Bush did such a great job of 
responding to that and he said, you know, Senator, I believe you missed 
the point. Yeah, some doctors can afford to pay $50,000, some can 
afford to pay $75,000 a year, depending on their specialty, for medical 
malpractice coverage; other doctors can't. But that is really not the 
point.
  The point that causes the cost of medicine to go up so much is that 
all of these physicians practice in a defensive mode, and they order 
tests in many instances that are absolutely unnecessary, way too 
expensive, and, indeed, can be harmful to the patient.
  You know, I would imagine today, Mr. Speaker, if you went to any 
emergency room in this country with a headache, you are not going to 
get out of there without a CT scan being performed. And that particular 
procedure, by the time it is done and the radiologist reads the film, 
you're talking about $500, $600, when it would be obvious to a 
clinician, a skilled clinician in physical diagnosis that this patient 
is

[[Page 23]]

suffering from a tension headache or maybe a migraine headache. So this 
is where that cost goes up so much.
  I appreciate the gentleman giving me an opportunity to talk about it 
because the model for tort reform is what the State of California did 
back in 1978; the acronym is MICRA. But basically what we're talking 
about is to say that no patient who is injured by a physician 
practicing below the standard of care or a health care facility 
practicing below the standard of care that results in direct harm to 
the patient, they should have every opportunity for their day in court.
  Dr. Burgess and I probably have seen situations where we are pulling 
for the plaintiff because we know what happened in the particular 
setting and maybe in our community. But the judgments for so-called 
pain and suffering that can be up into the millions of dollars, which 
are totally unrelated to the degree of injury, is inappropriate. And 
that's basically what was passed in California and it has worked. The 
State of Texas, my State of Georgia, the State of Florida, several 
States have done this; but the vast majority of States are in 
situations where you don't see any neurosurgeons covering the emergency 
room. You see very few OB/GYN doctors staying in practice beyond the 
age of 50. They're all either getting out of the practice completely or 
they're going over to just a GYN practice. So I thank my colleague for 
bringing this issue up.
  And as I finish my remarks and yield back to the gentleman from 
Texas, I want to say, Mr. Speaker, that what happens so many times in 
what we do, we're constrained because of the cost. And we base cost on 
programs like Medicare part D, by this so-called static scoring that it 
cost too much money when so often programs like that have the potential 
to, in the long run, save money, but would get no credit for it. So we 
don't do things that we should be doing. Just like, as we were talking 
about earlier in the evening on electronic medical records, yes, it 
would cost some money, Mr. Speaker; the Federal Government would have 
to spend some money. I think that the new Democratic leadership has 
made a mistake in enacting these PAYGO rules which make it impossible 
in some instances to do things like the physician payment fix that Dr. 
Burgess is talking about, the repeal of the alternative minimum tax, 
which clearly was a mistake, an oversight 35 years ago when it wasn't 
indexed for inflation.
  And so now the Democratic leadership has put themselves in a position 
where we can't get things done because of those PAYGO rules when in the 
long run the program that we would enact would save money; it wouldn't 
cost money. So you would be paying for it doubly by cutting another 
program and raising taxes to pay for something that will eventually pay 
for itself. And, certainly, I think that's true with Medicare part D, 
and I absolutely believe it is true with the electronic medical records 
system that we need in this country, and I think it's true in regard to 
medical liability reform that Dr. Burgess is talking about. So I thank 
the gentleman for bringing that up, and I yield back.
  Mr. BURGESS. I thank the gentleman for his participation this 
evening. I actually thank you for bringing up the issue about 
Congressional Budget Office scoring. We're about to the time in this 
Congress where you hear us talk a lot about the budget, and we will be 
developing the parameters of the congressional budget shortly after the 
President gives his State of the Union message here in a few weeks. The 
President delivers his budget, and then we come up with a congressional 
version of the budget.
  The last year when we were working on the budget, I brought 
essentially what was the Texas medical liability reform model to the 
Budget Committee, had it scored by the Congressional Budget Office, and 
it scored in a savings just under $4 billion over the 5-year budgetary 
window, not an enormous amount of money; but for a body that spends $3 
trillion a year, it was savings worth looking at. And the Texas 
legislation, as the gentleman from Georgia pointed out, the law passed 
in California back in 1975 seems like forever ago. The Medical Injury 
Compensation Reform Act of 1975 passed in the State of California, 
signed by the Governor, who at the time was Jerry Brown. This same 
concept in Texas was developed. And the Medical Injury Compensation 
Reform Act of 1975 in California capped noneconomic damages at 
$250,000. The Texas bill was a little more flexible than that: it 
allowed for a trifurcated cap of $250,000 on the physician and $250,000 
on the hospital, and $250,000 on a second hospital or nursing home if 
one was involved.
  But that trifurcated cap allowed for a little more flexibility in 
trying to establish just compensation for a patient who, indeed, had 
been injured; but it also acknowledged the reality of our system in 
that you cannot have an open-ended amount of compensation for 
noneconomic damages because it throws so much indecision into the 
system that people can't make rational decisions.
  So by trifurcating the cap, and interestingly enough, in the State of 
Texas punitive damages were still allowed to stand, we also had 
periodic payments for large settlements, and we also had a Good 
Samaritan rule. This bill passed in 2003. It was upheld under a 
constitutional amendment election in September of 2003 and has now been 
the law of the land since that time. And we have seen phenomenal 
success in Texas, not only with holding down the cost of medical 
liability premiums, which were going up year after year after year, but 
we also saw medical liability insurers leaving the State in vast 
numbers. In fact, we've gone from 17 down to two. And you just don't 
get very good competition between insurance companies when you only 
have two of them.
  So we now have brought more insurers back into the State. They've 
come back into the State without an increase in premiums. In fact, 
Texas Medical Liability Trust, my last insurer of record, has reduced 
premiums by 22 percent over the last 4 years compared to double-digit 
increases for each of the last 5 years prior to 2003.
  So it really is a phenomenal success story. Smaller, mid-sized not-
for-profit community hospitals have had to put less money into their 
contingency funds to cover possible liability pay-outs, and as a 
consequence they've been able to return more money to capital 
investment, hiring nurses, just the kinds of things you want your 
smaller community not-for-profit hospital to be able to do when 
released from some of the constraints of the liability system.
  I'm not saying that this is perfect; I'm not saying that this is what 
we should all aspire to. Certainly there are reasons to consider 
concepts like medical courts. Certainly there are reasons to consider 
concepts like early offer. But the fact of the matter is we can do a 
lot better than what we're doing today because the system that we have 
today only compensates a small number of the patients who are actually 
injured. And, moreover, the time it takes for a patient to recover 
money under the current system is far too long.

                              {time}  2145

  And if you will, the administrative costs, that is, costs of the 
medical experts and the legal system and the lawyers' costs, consume 
about 55 to 58 percent of every dollar that's awarded in a settlement. 
Well, we wouldn't tolerate a health insurance company that had an 
administrative cost of 58 percent. We'd call them profiteers and we'd 
bring them up before hearings, but yet we tolerate it in our medical 
justice system every day of the week. And it's not right.
  I want to so much thank my friend from Georgia for joining me here 
tonight. This is an issue that we will get to talk about a lot over 
this next year. Obviously, we have got a 6-month window of opportunity 
on getting the physician payment formula right. I believe that means 
taking a short-term, mid-term, and long-term approach to the problem, 
which I have tried to do in the past. And we will be working with other 
people here in the House of Representatives, I hope on both sides of 
the aisle, to try to craft a solution to

[[Page 24]]

this problem, which has vexed this Congress for a number of years. But 
suffice it to say, we will be able to be back here on several more 
occasions talking about this and other issues as they relate to health 
care in this country.

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