Patients First Act of 2003 - Motion to Proceed

PATIENTS FIRST ACT OF 2003—MOTION TO PROCEED

    Mr. DURBIN. Mr. President, let me first commend my colleague, Senator McConnell of Kentucky, for his presentation and his leadership on this issue. Though we disagree on some very fundamental parts of this issue, I have the highest regard and respect for his ability and I look forward to working with him.

    What occurred about 45 minutes ago was that Senator Frist, the majority leader, came to the Chamber and filed a motion to proceed, and I objected. What Senator Frist was asking was that the Senate stop its business and move directly to S. 11 relative to the issue of medical malpractice. Because I have filed an objection, Senator Frist indicated he would file a cloture motion. After collecting the necessary signatures from our colleagues, this will lead to a vote on cloture come Wednesday.

    If Senator Frist can gather some 60 votes, he will be in a position to then move to this bill and begin the debate and the amendment process. That is the ordinary course of the procedure.

    An obvious question is why I objected. An issue clearly as important as medical malpractice should be considered by the Senate. There is no doubt in my mind. But I would object to the fact that this bill comes to the floor without any hearing before a Senate committee. Consider that. The most revolutionary and dramatic reform of tort law in America, in modern memory, will come to the floor without the normal hearings, witnesses, opportunities to amend, opportunity to work out compromises and negotiate, all part of the legislative process. So why then does a bill of this gravity and importance only come to us in this circumstance where there is no chance for us to work out ways to resolve our differences? Why, I cannot explain that to my colleagues. For a person like myself who served for some time in the House and the Senate, it seems to me that the Republican leadership in control of the committee structure would not object to taking this bill to one of their committees, having hearings, bringing in the doctors, the lawyers, the victims, the insurance companies, the pharmaceutical companies, and the companies that make medical devices. Let's hear about this problem in its entirety. But, no, they object to that. They do not want hearings. They do not want the people of this country to hear both sides of the story. They would rather come to the floor and present their side with a take-it-or-leave-it approach. I do not think that is fair. I think we can and we should do better.

    Let me say at the outset that though I have objected and though most major medical associations, like the American Medical Association, support this bill, I want to make clear my high regard for the medical profession. Time and time again, in my life and the life of my family, I have turned to some of the best and most talented medical professionals in America. I have entrusted them with the most important things I have on Earth—my wife, my children, and the people whom I love.

    Time and again I have found them to be selfless, extraordinarily talented, compassionate men and women who give the medical profession a good name every single day. Thank God they are there, and I want them to continue to be there. So I do not come to this Chamber as a doctor basher, as someone who thinks doctors are overpaid or frankly should be held to task for this, that, and the other. Not at all. Like most Americans, if I, my wife, or children are ever sick, I want to look up into the eyes of the best and brightest doctor in America helping a member of my family through a medical crisis. My family and I have been lucky in our lives. Many times I think we have had the best and the brightest, and I still continue to thank them as I take a position with which many of them will not agree.

    I believe there is a fundamental unfairness in the current situation with medical malpractice. I have seen that unfairness in my State. Senator McConnell has noted it in many other States. The largest medical malpractice insurance company in Illinois, the Illinois State Mutual Insurance Company, raised its rates last week 35 percent on doctors for medical malpractice insurance. Many lines of insurance are going up in cost, health insurance and other insurance, but this is an extraordinary increase.

    Two neurosurgeons in Joliet, IL, have given up the practice of brain surgery because of malpractice premium increases. They have left the city's only two hospitals without a full-time coverage for head trauma cases. Senator McConnell is right; Victims of automobile accidents and trauma need immediate help and immediate care.

    Memorial Hospital in Belleville, IL, near the area where I grew up, has lost three OB/GYN physicians in the past 6 months due to increases in rising malpractice premiums. I met one of them. I met one during the course of the campaign last year. She came to me and said: Senator, I just cannot continue to pay these premiums and deliver babies. And I believe her.

    Eduardo Barriuso of Humboldt Park, an obstetrician in my State of Illinois, pays $104,000 a year for malpractice insurance. He says he earns $175,000 a year treating mostly poor people, Medicaid patients. He pays $104,000 in malpractice, and has $175,000 in income. Like other doctors who treat patients who depend on Medicare or Medicaid or insurance through an HMO, Dr. Barriuso cannot pass on his higher insurance rates to his patients.

    The Family Health Partnership Clinic in McHenry, IL, was almost forced to close after its insurer left my home State. They found new insurance at four times the cost. The clinic serves the uninsured and operates off the volunteer services of physicians. It now pays $28,000 a year for malpractice insurance, up from $7,000 last year, for a clinic serving poor people.

    A Chicago area OB/GYN is studying to obtain his pharmacist license. He has decided he cannot continue as a doctor. He thinks he can make a better life as a pharmacist. He is now paying $115,000 for his liability insurance. I would readily concede the point made over and over by Senator McConnell that these malpractice premiums are not fair. They are unfair particularly to certain specialties—neurosurgery, trauma care physicians, OB/GYN, and several others who have been hit hard by these increases. That is just not fair.

    I suggest there is another unfairness involved in this discussion, an unfairness which my colleague from Kentucky never conceded. Frankly, there is an unfairness in this bill when it comes to the victims of medical malpractice. Of all the comments made by my colleague from Kentucky, little was said about whether it is fair to cap the recovery for a victim of medical malpractice at medical bills, lost wages, and pain and suffering of no more than $250,000.

    Now, I do not come as an expert on anything. Some 20 years ago, in my legal practice in Springfield, IL, I handled medical malpractice cases. For a number of years I defended doctors through their insurance company. I had about 7 years with that experience. Another 2½ years I was a plaintiffs' attorney suing some doctors and hospitals for malpractice. So I have seen it from both sides of the table in a courtroom. I do understand the dynamics of a medical malpractice case, at least as they applied 20 years ago. I do not know how many others in this Chamber have had that experience. Some have but very few.

    So we come to this discussion, frankly, listening to others who are experts in the subject asking them for advice. What is the right thing to do to deal with this medical malpractice insurance crisis? I think, frankly, that this bill, which limits the compensation to be paid to an individual under a medical malpractice case to $250,000, is fundamentally unfair. It is as unfair to victims as the malpractice insurance rates are to doctors.

    Is that the best the Senate can do, that we take the unfairness to doctors and then visit it on unsuspecting people who go to a doctor or to a hospital expecting professional care and come home with their lives changed or ruined?

    I recall one case in Chicago. Let me give an illustration of what S. 11 would mean in this case. This woman, about 50 years old, had two moles on the side of her face. She said to her doctor: I think I would like to have those removed, doctor. He said: I will send you to one of the very best hospitals for this surgical procedure, and he did.

    She went in for this surgical procedure to have two moles removed. She was given an anesthesia. They administered oxygen to her and they began to cauterize these moles. But there was a problem. Medical personnel were not supposed to use a cauterizing gun near oxygen.

    As a consequence, there was an explosion and a fire on her face, burning off her nose, completely disfiguring and scarring her face. She is in her early fifties now and has gone through extensive reconstructive surgery. She is lucky to be able to breathe through what was once her nose. Her life will never, ever be the same.

    She told the story herself in an article published in the newspaper in Chicago. Routine surgery went disastrously bad and her life was changed forever.

    According to those who have brought the bill to the Senate, they have decided how much it is worth to live 20 or 30 years with permanent disfigurement and scarring, what it is worth to go into the hospital for routine surgery and have something happen that completely changes your life. Do you know what it is worth under this bill? It is worth $250,000 for her pain and suffering. Not a penny more, not one penny more.

    The decision will be made in the Senate that in her case, and thousands of others across America, we will decide the maximum amount to which she is entitled. I don't think that is fair. I don't think it is fair to victims.

    Malpractice premiums are too high and that is unfair to doctors. But a $250,000 pain and suffering cap? That is unfair in many cases of which I am aware.

    Let me talk about another case from my home State of Illinois, in the city of Urbana. David was born prematurely with a lot of problems. By the time he was 6 years old many of the problems were behind him, though he still had some problems with his lungs and asthma. When he was 6 he had a respiratory infection and started running a fever. The doctor who usually cared for him was out of town so his parents took him to a clinic for nighttime care. At the clinic, he was given an antibiotic and sent home. He got worse. His parents took him to an emergency room that same night where he remained overnight with a fever. The next day, concerned about David's continuing fever, David and his parents returned. The doctor admitted him to the hospital at 5 p.m. At the hospital, they took his temperature and admitted him to a regular hospital room. They did not refer him to the ICU, nor did they place a temperature monitor on him.

    His mother was dozing in the chair in his room when a nurse observed he appeared to be lapsing into a seizure condition. The nurse did an emergency code. By the time the emergency team arrived, he was in full seizure. His temperature spiked to 107.7 degrees. He remained in a state of seizure for quite some time and eventually went into cardiac arrest.

    As a result of this ordeal, this 6-year-old boy was rendered a quadriplegic and lost all expressive ability. Professionals believe he has what is called receptive language. He can understand spoken language at an age-appropriate level but he is unable to communicate. He breathes through a tracheotomy stoma and is fed through a gastrointestinal tube.

    That was 11 years ago. He is now 17. David can never be left alone, not for 1 minute of 1 day. His mother says she can tell he is interested in girls by the way he perks up when a girl his age enters the room. But he cannot express himself. He cannot say a word. There is no chance of recovery and, of course, in his condition he is at a heightened risk prone to infection.

    The very issue that brought David to the hospital in the first place was his elevated temperature. Despite that fact, no temperature monitor was ever placed on him. In light of his history and his delicate medical condition he should have been admitted to the ICU rather than simply sent to the regular hospital room and given periodic attention. His family reached a settlement with the doctors and the hospital for the negligence in the treatment of David.

    It is not likely with all of the liability protections and extreme cap on damages under this bill that defendants would have felt compelled to reach a settlement with that family if the bill before the Senate would have been the law of the land.

    The tragic malpractice of which David was a victim literally took away from him all that every one of us take for granted. He will never walk again. He will never have a normal relationship with other people. Though he remains alert and is apparently not intellectually impaired, he cannot express himself and he never will be able to. He requires constant care. His mother gave up her job at a local college to care for him full time.

    For all of these losses with their child, for being denied a normal life, those who bring S. 11 today say they know what it is worth. They know what the pain and suffering of David is worth for the rest of his life. It is worth $250,000. Not a penny more. Is that fair? Is that fair to David, his mother, his father? I don't think it is.

    What we have here is a response to a medical insurance crisis which I don't believe gets to the root cause of a problem.

    What I am about to say now is not a statement made by trial lawyers or those friendly to them. I quote from Dr. Carolyn Clancy, director for the Agency for Health Care Research and Quality at the U.S. Department of Health and Human Services. What I am stating she said, under oath, before a committee I attended several weeks ago. This is what she said:

    As we all know, medical errors and patient safety issues represent a national problem of epidemic proportion.

    This is a spokesman for the Department of Health and Human Services, a medical doctor herself.

    When listening to the explanation of this bill, at any point in time did you hear any reference to the fact that we are facing an epidemic of medical errors on patient safety issues in America? No. What we heard was we have lawyers who want to make too much money in court and they are taking these cases to the courtroom.

    Do you know, according to Harvard, what percentage of medical malpractice actually ends up in a lawsuit being filed? Two percent. One case out of 50 ends up with a lawsuit being filed. Think of that. In the universe of medical errors and patient safety, think of it in terms of this statement by Dr. Clancy that we have a national problem of epidemic proportions.

    The response of S. 11 to this epidemic of malpractice and medical negligence is to do what? It is to say that David, who is now 17, who is now a quadriplegic, unable to respond or express himself, is going to pay the price. David and children like him in the future will never, ever be able to recover more than $250,000 regardless of medical malpractice that brings them to the court.

    I understand my colleague from Oregon is here and I yield to him for the purpose of a question.

    Mr. WYDEN. I thank my colleague. I had a couple of questions, having listened to the statement.

    First, my sense is that many physicians in our country—I am seeing this across Oregon and rural Oregon—are having a real problem out there paying their malpractice premiums. We are seeing physicians leave the profession. This has resulted in patients not having the access to care they deserve.

    My understanding is that the distinguished Senator from Illinois agrees with that and that the Senator has already discussed that a bit this afternoon; is that correct?

    Mr. DURBIN. That is correct. I say to my friend and colleague from Oregon, I think it is a disservice to the medical profession of America not to concede there is a medical malpractice insurance crisis affecting some specialties in some States. I do not argue that point. I have seen those doctors face to face. Maybe my colleague from Oregon has, too.

    It is interesting, I might say to my friend from Oregon, as I listened carefully to the explanation on the other side as to how to deal with this crisis, I waited in vain to hear any suggestion that insurance companies should be brought in as part of this conversation. To the other side of the aisle it appears the only thing we need to do is to make sure the victims of medical malpractice have a limitation on what they can recover in court, no matter whether we are dealing with children or elderly people, no matter how serious the injuries. I do not think that is a complete and honest approach to an extremely complicated problem.

    Mr. WYDEN. If my colleague will yield further, my understanding is you have already indicated you are open to working with others in the Senate, colleagues on the other side of the aisle, to try to find a bipartisan solution. I am particularly interested. Senator Hatch and I were able to do this a number of years ago for the community health centers that were being priced out of their malpractice coverage. We were able to come up with a solution that has made it possible for thousands and thousands of poor people across the country to get their care and have these clinics covered without extra cost to the taxpayers, simply by working in a bipartisan way. My sense is to get out beyond the blame game, saying it is this interest group's fault or that interest group's fault, and to try to find some common ground here between Democrats and Republicans so we can really deal with a problem that is affecting many of our physicians and affecting our vulnerable patients. My understanding is my colleague from Illinois is open to that kind of bipartisan approach and may even have some ideas he will offer this week.

    I wanted to come to the floor because I think this is a real problem. I so often go to meetings and one group says it is the insurance companies' fault and the other group says it is the trial lawyers' fault. I have heard the distinguished Senator from Illinois say he wants to get beyond that and find a solution to a real problem. Perhaps he could address that in whatever time is remaining.

    Mr. DURBIN. I thank the Senator. I did not have a chance to speak to Senator McConnell, but I did speak to Senator Frist, who was here earlier and made that same offer. I said to him, instead of bringing this bill to the floor, take it or leave it, with no committee hearings and no effort to try to work out our differences, wouldn't it be better for us to sit down at some point and try to engage all the elements that are necessary for success if we are going to deal with this true crisis in America?

    He is open. I hope, if opportunity presents itself, we have that chance. I think we need to bring to the table, not only the legal profession but also the medical profession and the insurance companies. If you do not have all three of them at the table, as I will make clear in my statement, you are not going to get to the root cause of the problem.

    The answer from the other side is strictly to limit for malpractice victims the amount they can recover in court. I am going to show in charts I will present that that has not worked. Caps really do not guarantee that malpractice premiums come down, for a variety of very complicated reasons.

    I hope we can do that. I hope on a bipartisan basis we can stop this high-noon standoff and reach a point where we have real conversation and dialog.

    Mr. WYDEN. If my colleague will yield for one last question——

    The PRESIDING OFFICER (Mr. Sununu). Will the Senator suspend so the Presiding Officer may remind all Senators that yielding is only for purposes of asking a question in order for the Senator from Illinois to retain his recognition on the floor.

    Mr. DURBIN. I yield for the purpose of a question.

    Mr. WYDEN. I ask, is there any reason why we couldn't begin such a bipartisan effort immediately? That is something I would like to do. I cited a specific example with Senator Hatch where we were able to make a real difference by working in a bipartisan way. It is making a difference in community health centers for their liability coverage. Is there any reason why efforts to come up with creative solutions that are bipartisan could not begin right now, rather than going this route that is going to polarize the Senate once again?

    Mr. DURBIN. I would say through the Presiding Officer, there is no reason why it should not start this evening and I hope it will. But it will require people of good will on both sides. It will require some of the special interest groups that have not even been brought into this conversation to be brought in and to accept their share of responsibility.

    I think we can work this out. We must work this out so we do not have the denial of basic medical services that are needed across the State of Oregon and Illinois and New Hampshire and Kentucky and so many other States. But we have to do it in a bipartisan, constructive way.

    Mr. WYDEN. I thank my colleague.

    Mr. DURBIN. I thank the Senator from Oregon for coming to the floor.

    The point I wanted to make with Dr. Clancy's quote is that medical malpractice in this country is a very serious problem. It is not just a matter of how many lawsuits are filed. As I indicated, only one out of 50 malpractice cases actually ends up in court, and fewer than half of them end up going to verdict or settlement. It is a serious problem. The source of my statement is none other than the Institute of Medicine, a well respected organization here in Washington. They say this epidemic of medical malpractice has caused more American deaths this year than breast cancer, AIDS, and car accidents combined. It is an equivalent of a jumbo jet liner crashing every 24 hours for a year.

    More than 70 studies in the past decade have documented serious quality problems in medical treatment. One of the most well known studies published in 1991 by a team of Harvard researchers found adverse events occur in 3.7 percent of all hospital admissions and 58 percent of those events are due to error.

    The Institute of Medicine later took that study and another similar study done in Colorado and Utah and extrapolated the results to all U.S. hospital admissions. The Institute of Medicine found that there are at least 44,000 adverse events every year and as many as 98,000.

    They also found that each year drugs kill 14,000 hospital patients and injure another 750,000.

    The group of Harvard researchers that published the 1991 study found only 47 malpractice claims in the 31,429 cases they discovered. Of the 280 identified patients who experienced adverse events as a result of medical negligence, only eight filed malpractice lawsuits. That is only 2 percent of the people who had a justifiable reason to file a claim. Those researchers concluded that we do not now have a problem of too many claims. If anything, they said they were surprised there were so few.

    A similar study published in The Lancet found that although 17.7 percent of patients experienced an adverse event that led to longer hospital stays, only 1.2 percent filed a claim. Thirty patients filed a malpractice claim out of 1,047 who could have, under this study.

    There are profound problems with the current system. Doctors are not being disciplined and errors are not being reported. How can we expect fewer errors in the future if we do not address the system as a whole? Despite the alarming incidence of malpractice, only about 2,000 doctors, one-third of 1 percent of the doctors in the United States, are disciplined each year by State medical boards. Let me repeat, one-third of 1 percent of all doctors are disciplined each year by State medical boards.

    I was on a trip recently and picked up a book in a book store which I recommend to people on both sides of this issue because I think it is the best and most balanced story of what we are facing and debating. It is entitled "Complications." It is by a surgical resident from Boston, Atul Gawande, a National Book Award finalist for this book. It is subtitled "A Surgeon's Notes On An Imperfect Science."

    If you read this book—some people won't want to because there are some parts that may make you squeamish. I think Dr. Gawande really talks to you about the difficulty of being a medical doctor. The first chapter talks about placing a central line. It was tough for me to read this chapter, let alone what it was like for him as a surgical resident after having seen this central line implanted in a person's chest to do it for the first time himself. He had to. Trial and error was the only way he would learn. Of course, some mistakes were made. In his case they were not fatal or serious. But it was part of the learning process.

    I think we have to concede that medical practice is not perfect. But we also know some serious mistakes can be made with terrible consequences on an innocent patient.

    Dr. Gawande refers in one part to this whole question of what to do or how to deal with the fact that many doctors practice with other doctors who they really are worried about.

    Let me give you an example of what he refers to in a chapter entitled "When Good Doctors Go Bad." He says:

    But the problem of bad doctors isn't the problem of these frightening aberrations. .    .    . In medicine, we all come to know such physicians: the illustrious cardiologist who has slowly gone senile and won't retire; the long-respected obstetrician with a drinking habit; the surgeon who has somehow lost his touch. On the one hand, strong evidence indicates that mistakes are not made primarily by this minority of doctors. Errors are too common and widespread to be explained so simply. On the other hand, problem doctors do exist. Even good doctors can go bad, and when they do, colleagues tend to be almost entirely unequipped to do anything about them.

    He talks about situations that he has faced where doctors are taking drugs. Doctors continue to practice and make errors every day. Because of the tight-knit community of physicians, other doctors are even afraid to speak to them, let alone to governing boards. Those doctors continue to make serious mistakes.

    Quoting again, he says:

    When a skilled, decent, ordinarily conscientious colleague, whom you've known and worked with for years, starts popping Percodans, or become preoccupied with personal problems and neglects the proper care of patients, you want to help, not destroy the doctor's career.

    There is no easy way to help, though. In private practice, there are no sabbaticals to offer, no leaves of absence, only disciplinary proceedings of public reports and misdeeds. As a consequence, when people try to help, they do it quietly, privately. Their intentions are good; the result usually isn't.

    This is a serious problem. If we are talking about malpractice claims, don't we owe it to the American people to be talking about medical errors and negligence and what we can responsibly do to make certain that the small minority of physicians who are guilty of malpractice are changed or removed from the practice?

    It is estimated that 50 percent of the malpractice cases in America are filed against 5 percent of the doctors. Yet all of the doctors end up seeing their malpractice premiums increase.

    When Congress set up a national practitioner database in 1986 to collect data on adverse medical practice, it was expected that at most it would report about 1,000 disciplinary actions a month. However, fewer than 1,000 a year are reported across the United States.

    Let me address another issue. It is interesting, when I speak to groups of doctors, this is the focus of their attention, as it should be, because malpractice premiums have gone up so high. But 2 years ago, this wasn't what doctors were talking about. Malpractice premiums were lower. They weren't raising this issue as often.

    They were raising another issue which is related. They were raising the issue of HMOs and managed care. Doctors across America told me that for years they were having difficulty being good doctors because insurance companies were telling them whether or not they could have tests performed, how long they could leave a patient in the hospital, and whether or not a surgery was indicated. They were beside themselves saying we were trained as medical professionals. We are being overruled by insurance companies.

    Is it a great leap for us to take that concern of doctors over these many years and understand that perhaps one of the reasons why malpractice has increased is that HMOs and managed care companies are squeezing doctors away from the professional standards that they were taught to follow? That is part of the reality.

    Another part of the reality is that not very long ago increased malpractice premiums were passed on to patients. Patients paid more in fees. Hospitals, of course, charged more for their services. Now, with HMOs and managed care and strict accounting and restrictions in compensation, the malpractice premiums can't be passed on. The doctor pays more of it personally.

    That is why this has become a dominant issue. But it also relates to insurance companies.

    A special interest group that is so heavily favored here in the U.S. Senate, which was hardly mentioned in the opening statement about S. 11, is the insurance companies. We just do not talk about insurance companies in polite Senate company. It is considered inappropriate to think that perhaps they have gone too far.

    Do you know what this bill does? I think this is a classic. When you get to section 13 of this bill, the sense of Congress—this is like sending a note to your sister, but it is a sense of Congress, not a law—that a health insurer should be liable for damages for harm caused when it makes a decision as to what care is medically necessary and appropriate.

    We debated for months as to whether the HMO and managed care company would be held accountable for making the decision on what is medically necessary and appropriate. Those on the other side of the aisle stood with the insurance companies and said: No, we don't want to hold those insurance companies liable. If they say that somebody has to leave a hospital too soon or that surgery is not indicated, the best we can do in this bill on malpractice is a sense of Congress—note to your sister—that says we really think a health insurer should be liable for damages performed. No law, just that is what we think; that is what we sense.

    Is that any way to address this serious problem that is part of the medical malpractice crisis facing our country? Doctors and nurses many times know who the problem doctors are, and they know the problems with insurance companies. But the culture we are creating in the medical profession and the political culture which we created on the floor of the Senate has led us to the point where we can't honestly speak to the American people about remedying this problem.

    I think there is a better way to deal with this. We should enact legislation following the lead of Senator Kennedy, who introduced a bill last year. It would establish a voluntary system to share medical error information among providers' and patients' safety organizations through the National Patients' Safety Database. Information shared in this manner would be privileged and not subject to legal discovery. But it would allow health care professionals to report accidents without fear that that information will put anyone in legal jeopardy. It would take a bad doctor out of the operating room when he should be out.

    Health professionals who submit reports would also be protected from discrimination in the workplace for participating in reporting systems.

    Also, consistent with the Institute of Medicine recommendation, this bill creates a new Center for Quality Improvement and Patient Safety and the Agency for Health Care Research and Quality. The center would conduct and support research on medical errors—something we need to face and face honestly.

    We also have to concede another point. When the doctors from Illinois came in and said they favored this bill, I asked them: If we imposed a strict limitation of $250,000 on David and his family, a child who went to the doctor and hospital but unfortunately did not have his temperature monitored and became quadriplegic, if we said that child, no matter how long he lives, can never get more than $250,000 for pain and suffering, no matter what the circumstances, if we did that, would it bring down your malpractice premiums? The doctors said: No, not right away, but maybe in 3 or 4 years we would start to see that turn around. In 3 or 4 years?

    I listened to the Senator from Kentucky come before us and talk about an immediate national crisis. If his bill passes, it doesn't respond to this immediate national crisis. There is a better way to do this.

    Over the past 2½ years with the Bush administration, we have been rather liberal—I guess I could use that word—in relation to their particular subject, tax cuts. We decided to use the tax cuts to reward and help certain people in our society. I believe we should construct legislation that allows a tax credit for those medical professionals and doctors who see their malpractice premiums going through the roof. To do that gives them immediate assistance, not something that may or may not help them 3 or 4 years from now.

    The same could be true for hospitals and certainly for high-risk specialties. We need to allow doctors and hospitals to claim a tax credit for the percentage of malpractice premiums they are paying or will pay in the next number of years.

    I also want to talk to you about the whole question of insurers and why we are in this dilemma. This has been analyzed by many groups, including the Government Accounting Office, the Wall Street Journal, and USA Today. How did we reach this point of a malpractice insurance crisis today? Why is it so much worse today than it was?

    According to the Senator from Kentucky, one of the sponsors of S. 11, it is all about lawyers filing claims. That is not the whole story.

    Insurance works in this fashion. If I am going to insure you for a loss, I collect the premium from you. The only way that I make a profit is if I collect more premiums from you than I have to pay back or I take those premiums and invest them in a way where I make money, and, coupling that together with excess premiums, make my profit.

    It turned out that a few years ago, with the booming stock market and during the period of economic expansion in this country, a malpractice insurance company—a leading company in St. Paul, which is now out of business—had collected so much money in reserves and was making so much money in investments that they decided to declare a $1 billion dividend. Other companies saw this and said we need to get in the malpractice business; this is lucrative. So they did. They went in and made their investments. As the stock market started to crumble, they had no choice but to cut off their malpractice insurance or raise their premiums dramatically.

    Did you hear any part of that explanation in the introduction of S. 11? You didn't. It was all about lawyers filing claims.

    But there is another part of the story. The insurance companies are a part of the story. We are not supposed to talk about that on the floor of the U.S. Senate. Perhaps someone is entertaining a rule to prohibit reference to insurance companies. We just don't do that around here. That is not considered polite. But it is part of the problem, and it is also part of the solution. We need to deal with making certain that insurance companies treat doctors fairly—and reinsurance companies.

    Now, this gets into the complexity of insurance policy, which I may not understand as well as I should, but I do know this part: There are five reinsurance companies in the world that reinsure for medical malpractice. Only one of them, the Hartford, is regulated in the United States and subject to State regulation; the other four are not. We have no idea whether the rates they are charging are fair. So before we say to David and his family, $250,000 and not a penny more, no matter how long you live, the obvious questions is, Are the insurance companies dealing with this challenge and dealing with it fairly?

    Incidentally, the insurance companies are exempt from antitrust law. They can gather information and share that information without any penalty, through the Department of Justice, for violations of antitrust.

    I think we understand what we are dealing with, but let me give you an idea of actual cases in States. The Senator from Kentucky talked about various States facing a malpractice insurance crisis, with which I do not quarrel. He suggested caps on recovery was the way to bring down malpractice insurance premiums.

    The Weiss Ratings analysis took a look at the percentage increase in median medical malpractice premiums in the period between 1991 and 2002. They took a look at the States with caps, with limitations on how much a victim can recover, and those without caps.

    You would assume, by the opening argument, that if the State has caps on how much a victim and his family can recover, the malpractice premiums must be low. But look at these States as examples of what happened during that 10- or 11-year period of time. The States without caps on recovery for malpractice victims such as this child David: Arizona had a 3 percent increase in median premiums for medical malpractice; New York, 6 percent; Georgia, 8 percent; the State of Washington, 27 percent.

    When you go to the States with caps on recovery, let's see how their premiums reacted in the same period of time: California, up 50 percent; Kansas, up 60 percent; Utah, up 82 percent; and Louisiana, up 84 percent. So there is no direct correlation, no linear relation between caps and the premiums charged to doctors—exactly the opposite of what has been argued on the floor of the Senate on the motion to proceed to the bill.

    In fact, if you look at it on a national basis—this, again, from the Weiss Ratings, Incorporated—the percentage increase in median medical malpractice premiums from 1991 to 2002: States with caps, with limitations on how much victims can recover, if they are the victims of medical negligence, a 48 percent increase in that period time; States without caps, 36 percent. So it is counterintuitive to argue that we are dealing with a linear relationship, direct relationship between caps and the premiums that are charged.

    I would like to also add that I think we have to be honest about how we bring the groups together to deal with this. I think we also have to look to the legal profession. I do believe that if attorneys are guilty of filing frivolous medical malpractice lawsuits, we should put into law penalties to not only penalize them for costs and attorney's fees but ultimately to prohibit them from filing this kind of lawsuit if it is done with any repetition.

    I do not believe doctors should be harassed. I want them to be doctors first and not sitting around in depositions and courtrooms for lawsuits that never should have been filed. But let me add very quickly, I have been there. I, as an attorney, had people walk into my office where they had husbands who had died, children who had died, and asked me to file medical malpractice lawsuits. I had to listen to those facts and make a decision. I will tell you, I thought long and hard before I considered taking on any of those cases.

    Filing a medical malpractice case is not easy. It is not cheap. It is complicated and extremely expensive. If you do not start off with an understanding that you have a good chance of recovery, then, frankly, most attorneys will turn down those cases. That is why so few cases are filed relative to the number of malpractice claims that could be filed. Attorneys know that getting involved in those lawsuits in my State, now, requires an affidavit from a doctor which says, before you can file the complaint, that you do have a legitimate claim for medical malpractice.

    We know the depositions will require expert witnesses, who are extremely expensive, in preparing your case to take it to the jury. All of these things are understood. We also know, at the end of the day, most plaintiffs lose their cases filed for medical malpractice, and that is after they have cleared all these hurdles. So to suggest that attorneys are just filing these cases frivolously, believing they are going to receive money for just filing a complaint, is certainly not my experience.

    Let me say before I yield the floor—I notice my colleagues are in the Chamber and would like to speak—there is an element of this bill which the Senator from Kentucky made no mention of and no reference to whatsoever. He told us very good and important stories about doctors who could not practice because of malpractice premiums. I think he should have also included the fact that this bill does not just provide a limitation on recovery for lawsuits brought against doctors; this bill provides a limitation on recovery for lawsuits brought against pharmaceutical companies and medical device manufacturers.

    I did not read anywhere about a malpractice crisis involving pharmaceutical companies, but we learned 2 weeks ago, when we debated the prescription drug bill—and we have learned time and again—that hardly any major bill could go through the Senate unless it figured out a way to help drug companies. This bill is no exception. This bill has been designed to make certain there is a limitation on the amount of money that can be recovered from drug companies and medical device companies when they may be guilty of product liability, when they may have sold a product which injured someone.

    I can recall a specific situation: heart catheters. I am a little bit familiar with this issue, and maybe some of those who have followed the debate are as well. These are tiny little lines which are passed through a vein of a person to their heart, and they actually film what is going on in the person's heart. It is an amazing diagnostic device.

    The medical device itself had been cleared by the Food and Drug Administration, but it turned out that the manufacturer was guilty of shoddy practices in Massachusetts. This manufacturer was creating and producing catheters which, when inserted into a patient and sent up to the heart, would break, leaving portions within the heart, leading to the necessity for surgery to retrieve those pieces that were left behind.

    Now, I ask you, is that truly what this debate is all about, that medical device manufacturers which negligently make a product that can endanger the lives of individuals should also be limited in terms of their liability? These are not individual doctors; these are medical device companies. The same thing can be said of pharmaceutical companies.

    So I would just ask the sponsor of this legislation, the next time he comes to the floor to explain this bill—and does it in compassionate terms about doctors—why he does not tell us the rest of the story. I want to hear the rationale about drug companies and medical device companies, why they, too, need this protection when their products cause extremely excessive damage to individuals.

    It is my understanding that tomorrow we are going to return to the motion to proceed to this bill, and I am sure many of my colleagues will be coming to the floor. But I will say this, as I did at the outset: It is unfair the way doctors are being treated with medical malpractice premiums. Something needs to be done in a responsible fashion, and involving doctors and lawyers as well as insurance companies. If we do it, and do it right, it will be a service to every family in America and every community in America.

    But this bill, S. 11, is equally unfair to the victims of medical negligence. To put a limitation on the amount a person can recover—regardless of the permanent disfigurement, the incontinence, the blindness, the quadriplegia that these people will suffer for a lifetime—is fundamentally unfair and, as we have demonstrated, will not lead to lower premiums. There are better, more reasonable ways to approach this problem.

    As I said before on the floor, and I repeat at this point, I stand ready to work with the majority and other Members of the Senate. Let's roll up our sleeves and do this the right way. Let's do it in a way that we can be proud of, and not do it in a take-it-or-leave-it fashion, as this bill has been brought to the floor.

    I yield the floor.

    The PRESIDING OFFICER. The Senator from Wyoming.

    Mr. THOMAS. Mr. President, we are on this subject now. We are out of morning business; is that correct?

    The PRESIDING OFFICER. The pending business is the motion to proceed on this bill.

    Mr. THOMAS. I thank the Chairman.

    I am very pleased to come to the floor this afternoon and join my colleagues to address an issue that has a crippling effect on the health care system. It has helped take out of control Medicare costs, malpractice costs. I guess specifically I am interested in it for my own State, of course, as well as everyone else's. Some providers have seen premiums jump as much as 81 percent in 2 years. Rural areas are disproportionately impacted. Often there is no other provider to fill in when a doctor is forced to close shop. That has been the case in my State.

    Recent studies by HHS show that in States where they have enacted limits on noneconomic damages in lawsuits, there are about 12 percent more physicians per capita than there are where there is no such cap.

    So we are beginning to not only test the costs but whether we have providers. That is a very important one. OB/GYN services have been especially impacted in my State, where 9 out of 54 recently surveyed have either stopped delivering babies or plan to do so because of rising liability costs.

    I have listened to my friend from Illinois talk about this issue. Obviously it is going to be a controversial issue. There are different views, very different views, but it is not a new solution. It is one that has been in place and has proven to work in many of the States. It also is interesting that we have talked a lot—I happen to be involved with the rural health caucus. We have spent 2 weeks previous to this talking about Medicare. And we talk about, frankly, who is going to pay, but we seldom ever talk about what the costs are and what we could do about reducing some of the costs that put people out of touch with their own physician. This is one that is proven. This is one that does work. It is here to be acted upon.

    As to the discussion on the other side of the aisle that maybe we are in too much of a hurry, this has been on our minds and on our floor and in our States for a very long time. This is not a new idea as a matter of fact.

    I just wanted to show one little chart I think is interesting. That is to show that reforms do work as a matter of fact. This says, "2003 Premium Survey Data Selected by Specialties, $1 million to $3 million limits." Here are the specialties. Los Angeles, CA; Denver which has the limitation versus similar to what is here; New York, Nevada, Illinois, Florida do not. Then take a look here at internal medicine. Here is an $11,000 premium, $9,000 premium. Over here where there is no control—$16,000, $19,000, $26,000, $56,000. Down here is the OB/GYN. In these cases where there is some limitation, $54,000, which is obviously too much anywhere, and $30,000. But look over here where there are none, none of the controls we are talking about here, $89,000, $107,000, $102,000, $200,000. It does work. It does work. Medical Liability Monitor is the source of these numbers.

    It isn't as if we are talking about something that is untested, something that we don't know about. It is not as if we are talking about a new problem of which we were not aware. The fact is, we have physicians living in Cheyenne, WY, who drive to Colorado for this reason. Can you imagine Wyoming being one of the highest places to pay. You wouldn't think that, would you? I think this is something that has a good deal of merit, something that we need to talk about.

    We have cited some of the things that are peculiar to our own States. We have a doctor in Wheatland, WY, who over the last several years has delivered more than 2,000 babies in about four different counties. He has been the major provider of services there. He has quit operating. He has quit delivering babies.

    Sheridan, a little larger town, has one of two OB/GYNs in the area. His medical malpractice insurance costs over $60,000 a year. So we are in the position, then, when providers drop out of communities like this, where people are forced to drive 2 to 3 hours before they can get services. We have talked a lot, and we have a lot of concerns about rural health care. And it is difficult to keep providers in those areas. When you have one or two who leave, you have none. And so it is really quite different to be in our area.

    The Wyoming physician population ranks 47th out of 50 States. So every physician is very valuable to us. Forty percent of our family physicians are over the age of 50, and we are going to see more retirements. We are going to see more movement, particularly if there are disincentives to serve such as this cost of malpractice insurance. So we need to deal with this.

    As I said, this idea that is being promoted has been in place. We know that it works. Is it going to solve all the problems of cost? Of course not. But we know this one will solve some of the problems of cost, and we can move forward to find some other ones.

    As I said, we talk all the time about health care and who is going to pay. But as all health care costs keep going up 12 or 13, 14 percent a year, we have to begin sometime to take a look at how we can contain some of the costs so that somebody will be able to pay for it.

    One of our orthopedic surgeons in Teton County, Jackson Hole, WY, has seen a 300-percent increase in liability premiums in the last 12 months. Without trauma care in Jackson, these people have to go to Salt Lake City. This is the kind of additional difficulty we have.

    We all pay for medical liability costs. All patients pay the escalating costs generated by the Nation's dysfunctional medical liability system. And these increased premiums are the result. It also reduces the access to care, especially specialty care. So every taxpayer pays the price.

    We think we can reduce Federal spending in Medicare, Medicaid, the Federal Employees Benefits Plan. It is suggested we can reduce this by $14 billion in 10 years. This would be a savings to everyone. Local and State governments could save over $8 billion over that period of time. So it isn't just a focus on a few people. This is the kind of thing that would save us all money and I think would make our lives much better.

    What we are doing—and I think there needs to be a little explanation of it, to talk about it—doesn't limit damages to $250,000. It limits noneconomic damages to $250,000. So if someone needs care, if somebody needs various things that are economic costs, those things are not there. We want to make sure we listen carefully to what is being said here.

    So what we are seeking to do, of course—it seems to me reasonable—is to set reasonable limits on noneconomic damages, provide for a quicker review of liability claims, assure claims are filed within a reasonable limit of time, and educate folks that frivolous suits only add to the overall cost of care for everyone. We spend a lot of time talking about who should pay. I have already discussed that but rarely do we talk about the costs. They are becoming increasingly important to us.

    This bill is modeled after California's liability reform bill. California's law stabilized the State's medical liability insurance market, increasing patient access to care, saving more than $1 billion a year in liability premiums. As I said, specifically it allows unlimited economic damages. Past and future medical expense, loss of past and future earnings, cost of domestic services, these things are not limited. It establishes a reasonable limit on noneconomic damages which is exactly what we are seeking to do. States, however, would have the flexibility to establish or maintain their own laws on damage awards. It establishes a fair share rule that allocates damages properly and fairly in proportion to the party's degree of fault. There is a sliding scale for attorney's contingency fees; therefore, maximizing recovery for patients, which this is really all about.

    It authorizes periodic payments to injured parties rather than one lump payment.

    It is interesting to me, it does seem to present kind of strange politics. We argue on the other side of the aisle all the time about health care and that we ought to pay and make sure everybody has health care and so we will do it with taxes so that they are appealing to those people who need help in terms of costs. But when we come up with something that will impact the costs, suddenly the sympathy shifts over to the trial lawyers. It is sort of interesting to try to argue both sides, when there is a certain amount of conflict here.

    I think this is a real opportunity for us to do some things that will be helpful to everyone, whether they are taxpayers, patients, physicians, or whatever. We have a chance to do something with that. Now is our opportunity. It is not a new problem. I think it is time we act. I am pleased to be among the sponsors. I want to work to see that this moves forward.

    The PRESIDING OFFICER. The Senator from Kentucky is recognized.

    Mr. McCONNELL. Mr. President, briefly, I thank the Senator from Wyoming for his contribution to this debate. We were discussing off the floor the fact that Wyoming got added to the crisis list—today, actually. Talk about a State in which the distances are great and the problems are compounded by it; Wyoming has to be at the top of the list. I thank the Senator.

    I yield the floor.