Patients First Act of 2003 - Right to Proceed

CONGRESSIONAL RECORD
SENATE

PATIENTS FIRST ACT OF 2003—MOTION TO PROCEED—RESUMED

Mr. CORNYN. Mr. President, I wish to say a few words about the issue of medical liability reform, a matter that cries out for a remedy from the Congress because of its sheer scope and size.

When it comes to health care, I believe the proper role of the Government is to protect the freedom of all people to act in their own interests and in the interests of their health. I think it is appropriate that we make sure their decisions are not made by the Government but by themselves and their families. Patients and doctors, rather than lawyers and bureaucrats, should be trusted to decide what treatment is best for themselves and their patients.

I strongly believe that when people have good choices in a health care system built upon free market principles, it ultimately translates into high-quality care. One of the obstacles, though, to achieving access to that high-quality care is the current crisis involving medical liability litigation.

Today, America is experiencing a medical liability litigation crisis that is increasing the cost of health care, it is decreasing access to physicians and hospitals for many patients, and it is generally lowering the quality of care. As a matter of fact, we could hardly call our medical liability system a "system" because it is such a mess. In recent years, average jury awards have more than doubled, from more than $460,000 in 1996 to more than $1 million in the year 2000.

In the past year, medical liability insurance premiums in many States have increased by more than 20 percent, on average, and more than 75 percent for certain specialties. That is just in 1 year. Between 1991 and 2001, the number of medical malpractice payments of $1 million or more that were reported to the National Practitioners' Database increased from 298 to 806. The overall result is sky-high costs for liability insurance, increased costs for those who provide health treatment, and costs that have really created a crisis of enormous proportions, one that is threatening the quality of care, diminishing access to care, and exploding the cost of care.

According to studies at the Department of Health and Human Services, doctors across the country are closing their practices, they are limiting the types of patients they see, or they are leaving communities where they have long practiced because they cannot afford the rapidly increasing costs of medical liability insurance or, worse yet, insurance coverage is unavailable altogether.

Fear of liability suits—even frivolous litigation—also results in the practice of defensive medicine.
A recent survey, for example, conducted by an organization known as Common Good, revealed some disturbing trends: 79 percent of physicians admit that the fear of litigation has caused them to order more tests than they thought medically necessary, and 74 percent refer more patients to specialists than their best medical judgment would otherwise dictate. Half have recommended invasive procedures they do not consider on a medical basis to be necessary, but they have done it in an effort to protect themselves against the second-guessing that goes along with the medical liability regime.

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Defensive medicine increases risks for patients and it raises health care costs by as much as $126 billion per year. This is a crisis not just for the Nation's physicians, it is a danger to America's patients—in other words, every single one of us.

For example, pregnant women in Nevada, Mississippi, West Virginia, and Florida must drive hours just to find an obstetrician who can care for them, and many still cannot get the essential prenatal care they desperately need. The only level 1 trauma center in Las Vegas had to close temporarily last year because its surgeons could not afford medical liability insurance. Some physicians' annual premiums had increased from $40,000 to $200,000 in just a year.

In many States, physicians are retiring or moving their practices because they either cannot afford the liability insurance or simply cannot buy the liability insurance they need in order to protect what they have worked a lifetime to achieve.

In Mississippi, physicians are actually moving across the river to Louisiana to serve the same patients they would serve in Mississippi because they can no longer afford to practice in that State, and most cities in the State of Mississippi with populations under 20,000 no longer have any physician who will even deliver a baby.

There are many more examples from my State, the State of Texas. The city of Austin, for example, is suffering from a shortage of neurosurgeons caused by retirements and relocation to avoid liability coverage costs, a shortage so heavy that some patients have to travel more than 65 miles away to find treatment.

In 100 of the 254 counties in the State of Texas, there is no obstetrician; in other words, there is no medically trained specialist who will deliver a baby in 152 Texas counties. After 44 years, Spring Branch Medical Center near Houston has stopped delivering babies altogether due to the soaring malpractice insurance costs and the shrinking pool of physicians that will actually deliver babies.

According to the Texas Medical Association's physician survey last year, more than half of all Texas physicians, including those in the prime of their professional career, are considering early retirement because of the State's medical liability insurance crisis, and earlier this year the Fort Worth Star-Telegram reported about one story that illustrates the way this problem affects patients who need care the most. The story said:

Last summer, a pregnant woman showed up at Dr. Lloyd Van Winkle's Castroville office in south Texas, less than 10 minutes from delivery. Her family doctor in Uvalde had recently stopped delivering babies, citing malpractice concerns, and the woman was trying to drive 80 miles to her San Antonio doctor and hospital. "She made it as far as Castroville and decided she wasn't going to make it any further," Van Winkle said.

We all want to prevent disease and injury. When patients get sick, we all want to prevent medical errors, and when errors do happen, we can all agree that a patient should be compensated fairly. But if you can find some goal hidden somewhere within the current dysfunctional medical liability system, that goal would not be either the prevention of errors or the fair compensation for injury. Very clearly, the current medical liability crisis operates for the benefit of a few at the expense of the many.

Personal injury trial lawyers should not be able to drive good doctors out of medicine or to reduce patients' access to health care. This system undermines the ability of physicians to treat their patients without fear, and it destroys the trust and the important relationship between patients and their physicians, and it truly abandons the American patient—that is, every one of us—when we need the help the most.

I am proud to say that in my home State of Texas, the State government has stepped up in the legislative session just ended and passed some needed reforms in this and other areas. This year, despite overwhelming pressures from special interest groups, the State passed historic liability reform which makes it possible for doctors to practice in Texas without fear of unwarranted and frivolous lawsuits. The law puts caps on punitive damages while allowing for patients who are truly hurt to be fairly compensated. Judgments will be based on the amount of involvement in the act caused in the suit without consideration of who has the deepest pocket.

I must add, though, that even in my State of Texas, there will be a vote of the people on whether the Texas Constitution will be amended to provide a means to achieve this historic reform and much needed reform, and that vote remains to be given and taken. Yet there is still little recourse for patients in States without meaningful reform, and this is truly a nationwide crisis and not one that should be addressed by individual States, given the sheer magnitude of the crisis, its geographic expanse and, frankly, the amount of Federal taxpayers' dollars to go in to paying for the current dysfunctional system.

Our health care system is still burdened with frivolous lawsuits and outrageous jury awards. According to a Health and Human Services study, premiums in States without meaningful liability reform went up 39 percent in the year 2001 and an additional 51 percent in 2002. An out-of-control system in one State can have an effect on malpractice premiums in other States, even those States that have made some incremental step toward reform.

This is a national problem, and it demands a national solution. This legislation is comprehensive reform that will enact several critically needed components. For example, it caps noneconomic damages awarded in medical malpractice cases at $250,000. It will eliminate joint and several liability; in other words, the person at fault will pay for their percentage or their share of fault and no more. It will create a uniform statute of limitations; in other words, a period of time in which a lawsuit can be filed and pursued in court in a way that will preserve both the rights of the patient, as well as make sure that so much time does not pass that memories dim, records are destroyed, and the facts are difficult to discern.

It will reform the collateral source rule, another arcane rule of our legal system that says that even if someone has already been paid from one source they can still keep that information from the jury and seek to be paid yet again for the same loss.
Finally, it will create reasonable limits and court approval of attorney contingency fee awards. In many places, the amount of money that a lawyer will receive, and others will receive, in terms of costs of expert witnesses and the like routinely exceeds the amount of money that an injured patient will receive, somewhere on the order of out of every dollar that is awarded by a jury the injured patient only gets 40 cents. It is the lawyer and the bureaucracy in our litigation system that absorb the rest.

If this were truly about what is best for the patients, we would see reform. We would see it in the Senate. Unfortunately, this is about the 60 cents on the dollar that goes to people, other than the patient, who are obstructing true reform.
This legislation is a comprehensive reform and is modeled after the highly successful MICRA law in California, one that has been very successful both in making sure injured patients are fairly compensated while at the same time holding down the escalating costs of medical liability insurance in a way that allows most physicians to practice their chosen profession and which provides better access to good quality health care.

This act will help protect our critical care hospitals and provide needed relief for nursing homes and medical specialists. The cost of health care will be reduced as the need for high premiums for liability insurance will become a thing of the past.
We must remember that this crisis is not, in the end, about what is best for doctors, hospitals, insurance companies, or personal injury trial lawyers. What this bill is about is what is best for patients—in other words, what is best for the American people.

This crisis is threatening the quality of care, jeopardizing access to care, and escalating the costs of care. In my own State, one can travel to the gulf coast and Corpus Christi where emergency room physicians live in fear that they will be called to answer to a patient in a hospital emergency room, someone who they know they have never seen before and will never perhaps see again after treating them in the emergency room, and for a patient visit that they will likely not get paid or will get paid only pennies on a dollar for their usual fee, but yet because of the medical liability crisis they will put at risk everything they have worked a lifetime to build and achieve for themselves and for their family. That is even when they can buy insurance.

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The truth is, the costs of medical liability insurance have escalated so dramatically because of this crisis that many physicians cannot even buy adequate amounts of coverage. If they can, it is at such a cost that they figure why bother, why bother to practice, and so they simply leave.

I reiterate that in the end this is not about doctors, lawyers, hospitals, or insurance companies. This is about who gets access to quality health care, and in many parts of my State, and in many States across the Nation, access to health care is simply not there because of this crisis.

I believe we should end the liability lottery, where select patients and some trial lawyers receive astronomical awards, while others pay more—all of us really—for health care and many suffer access problems because of it. We should pass meaningful medical liability reform that includes real and lasting change and bring the lessons of Texas and other States that have done so to the Nation's Capital and the American people.

I yield the floor.