Patients First Act of 2003 - Motion to Proceed (cont.)

PATIENTS FIRST ACT OF 2003—MOTION TO PROCEED (cont.)

    The PRESIDING OFFICER. The Senator from Mississippi is recognized.

    Mr. LOTT. Mr. President, I want to correct some of the perceptions that perhaps have been left about what this legislation would do, or what the situation is.

    First, it is very interesting to me that it appears there is an effort to blame the medical profession, the doctors. I ask this question now of most Americans: Who do you have more confidence in, your local doctors, the drugs you have been taking, the medical devices that are keeping many alive, the type of medical care you are getting in home towns, or your local trial lawyer?

    Well, that is an easy question to answer. I have had to deal with that myself on both sides of the issue. By the way, I do have a law degree and I do know a lot of lawyers on both sides of the issue for whom I have a great deal of respect. Nobody is saying you should not have an opportunity to bring a lawsuit when you have been wronged or damaged. That is clearly not the case. But the idea that we are going to say no, no, there is not a medical liability crisis, there is a medical malpractice crisis—in fact, when I go around and talk to people who have pacemakers and have drugs that make their lives somewhat acceptable, or they have had strokes but they are controlling their blood pressure, up or down, they feel pretty good about health care in America.

    Health care in America is the goose that laid the golden egg. We are the most blessed people in the world when it comes to medical care. Is it perfect? No. Are mistakes made? Yes. Do we need better reporting or to keep records of this sort of thing? I will support that. The AMA may not like it that we keep closer track and deal with some of these mistakes that are made. But I am for that. I think we need to know where the problems are and we need to deal with them.

    But to say the problem here is the medical profession or the insurance industry—by the way, I don't want to just dismiss their involvement either. I want to make sure we understand why these medical liability insurance rates are going through the ceiling like they are. It is a variety of issues, I believe. I don't believe it is just the lawsuits but I think that is a big contributor. I think defensive medicine is a big part of it. I think that some of their investments went south on them and that is causing some insurance companies to raise rates.

    But to shift the burden over to the medical profession, when I know these men and women practicing medicine—the neurosurgeons, orthopedics, OB/GYNs—these general practitioners in the Mississippi Delta are already so terribly underserved and are just saying: We cannot continue. We are retiring or leaving and going to another State. This is the crisis. Maybe my State is worse than most but this is a huge problem, and it is all over the country now.

    One of the things I want to correct is this: Senator Durbin talked about David, referred to David's situation. The inference was that all he would get is $250,000. As a matter of fact, under this legislation, he would get all of his hospital bills paid for, all rehabilitation bills paid for, all physical therapy, all speech therapy, all occupational therapy; and if a home nurse is needed 24 hours a day, he could receive full compensation for that. He could get lost wages up to a lifetime of what he could have earned, which could be, obviously, millions of dollars. It could cover anything David's family would have to spend on his condition. Plus, the punitive damages in this legislation is not $250,000; it is the greater of $250,000 or two times economic damages. Quite often, economic damages could easily be $10 million.

    Mr. DURBIN. Will the Senator yield?

    Mr. LOTT. Then it would be two times that—$20 million—that a victim could receive if the economic damages are $10 million.

    So let me give an example, and then I will yield. I want to make this point. Under the California situation, with the $250,000 limit, what has happened? I ask unanimous consent to have this printed in the RECORD.

    Mr. LOTT. This shows that in December of 2002 there was an $84,250,000 total award in a case under the current California law; a $21 million in January of 1999; a $25 million award in October of 1997 for a boy with severe brain damage and mental retardation because of the anesthesia. It goes on. Here is one for a $59 million total award.

    So the inference that all you could get under this legislation would be $250,000 is absolutely not the case. It would depend on the economic damages, the totality of the costs, and the verdict rendered. So I just wanted to make sure people are aware that there is flexibility here and that, depending on the severity and how long it would last, it could be a multimillion-dollar recovery.

    I am glad to yield to Senator Durbin for a comment or question.

    Mr. DURBIN. I thank the Senator. I ask him this question: Is the Senator familiar with the provisions in this law relating to collateral sources? For example, health insurance?

    Mr. LOTT. That you would get health insurance and that would be deducted, in effect, from the damage? I was not familiar with that particular provision but I understand that does happen all the time. I am not a cosponsor of the legislation but I am planning on being one. That is why I have been here listening to the debate and reading the legislation. I want to know all of the ramifications of it. There may be the collateral insurance provision that would allow the amount of money received to be reduced by that.

    Mr. DURBIN. Is the Senator from Mississippi familiar with the fact that in all 50 States across the United States, including his State and mine, there is no similar provision about the deduction of collateral sources? There is only one other instance where we have passed a law where collateral sources would be credited, and that was for the victims of 9/11.

    Mr. LOTT. I wasn't aware it doesn't apply to any other States. I would think the States would want to take that into consideration. I don't have a problem with that. You need to look at the totality of a situation—and you have judges and juries who will do that—to see what recovery they might be getting through their insurance, as you decide what the award may be in terms of what their economic needs are.

    Mr. DURBIN. If the Senator will further yield, is he aware of the fact that in most States, if you go into a civil lawsuit and raise the issue of insurance coverage, it is an automatic mistrial?

    Mr. LOTT. Absolutely. I have seen it happen. I was involved in a case one time and one of the lawyers accidentally mentioned insurance, and there was a mistrial on the spot. I always thought that was kind of ridiculous. But I also know that some juries, when they think an insurance company is involved and that actually the doctor might not himself be paying, that might affect the amount of the verdict they would give. So that is why that law is on the books.

    Mr. DURBIN. If the Senator will further yield, this bill says that in any health care lawsuit any party may introduce evidence of collateral source benefits. I ask the Senator, does he consider it fair that if David's family had health insurance that paid for some or all of his medical bills, that those who were guilty of malpractice, in his case, should somehow be absolved from paying because his family had the foresight to have insurance?

    Mr. LOTT. Are these lawsuits about punishment, or are they about helping the people who have been damaged? Sometimes both. By the way, there could be, I guess, under certain circumstances, a criminal act involved. While I am not an expert in this area—it has been a long time since I practiced law and defended anybody—I have always thought the admission of evidence about where the money would come from or how much should be admissible in court. I have to defer to others who have more experience and more expertise in this area than I do.

    Mr. President, does Senator McConnell wish to comment? I yield for a question.

    Mr. McCONNELL. Mr. President, I say to my friend, my understanding of the way this provision would work is the collateral rule would allow the jury to know but does not reduce the award and does not allow the insurer to subrogate. That is the way this provision is crafted in this legislation. It would allow a jury to know, but it would not reduce the award and would not allow the insurer to subrogate. That is my understanding of the way it is crafted in the underlying legislation.

    Mr. DURBIN. Mr. President, I assume the Senator from Mississippi has the floor.

    Mr. LOTT. I yield to Senator Durbin for a further question or answer to the comments from Senator McConnell.

    Mr. DURBIN. I will do it in the nature of a question. Is it not true if the jury knows that the plaintiff's family, in David's case, has health insurance which is going to pay for some of his medical costs, which are obviously going to be extensive, that this is likely to diminish the amount that will have to be paid by the party responsible for David's condition?

    I ask the Senator, he suggested earlier that this should not be about punishment. Is there not a question of accountability? If the doctor in this case did not monitor his temperature leading to quadriplegia and a lifetime of pain and suffering, is there not a question of holding that doctor accountable rather than his parents for having the foresight of buying insurance?

    Mr. LOTT. To answer the question, I see no problem in a jury being able to consider the totality of the situation. I do not think we should ignore the fact a doctor—first of all, they are human beings. They do make mistakes. There are lawsuits based on very good cases and recoveries of a significant nature because of the extent of the damage or the longtime life impact on that person.

    When a doctor goes through this, don't you think it has an effect on his practice in that community? Do you think he is not adversely affected by it? I remember a case in my home area where a doctor left a sponge in a patient and it affected his career the rest of his life. He was punished. He was punished by the verdict, his insurance company had to pay, obviously—the patient got significant damages, both economic and punitive damages, and he suffered mightily.

    The point is, I have watched this issue for pretty close to 34 years, both as a lawyer and then as a Member of Congress, and it has gotten worse and worse. It is leading to a serious problem. It is about the patients, and it is about the doctors' insurance companies. But what about the people now who are losing access to medical care, to expert doctors, to especially the trauma doctors we are about to lose in my own State, the women who have to drive literally hundreds of miles to get to an obstetrician when they are going to have a baby, what about their risks? Maybe they should be able to file a lawsuit against somebody because they do not get sufficient health care.

    This is something we are going to talk about over the next 24 to 48 hours. I do think something has to be done.

    I want to make this point, too, in terms of working something out: We saw last year prescription drug legislation was brought directly to the Senate floor. It did not go through the Finance Committee. Because of that, we were required to get 60 votes, and that is why we did not get prescription drug legislation last year. A couple of the alternatives that were voted on got over 50 votes, but we had to have 60. So there is nothing extraordinary about taking up a bill that comes over from the House or taking a bill directly to the floor for consideration.

    I would prefer we have hearings. I think hearings would be a lot of fun. I would like to see the doctors, the nurses, and patients who are being denied care have a chance to say what this is doing to them. Maybe we could work out some of the disagreements.

    I wish to make this point: That effort has been made this year. Senator Frist has been working with Senator Feinstein to come up with a bipartisan bill basically along the lines of what is in this bill with the $250,000 limit on punitive damages or two times economic damages, whichever is greater. Senator McConnell probably was involved in those negotiations, but it fell apart when there was pressure to raise it from $250,000 to $500,000, and they just basically quit working on it, I guess, because they could not get an agreement.

    I would hope a committee would act—have hearings, report a bill, and let's make sure it is a good bill, but let's make sure it is not one written by just the plaintiffs' lawyers.

    Mr. President, does Senator McConnell wish to comment?

    Mr. McCONNELL. Mr. President, I want to make sure my friend from Mississippi is aware that, in fact, there was a joint hearing on February 11 between the Judiciary Committee and the Labor Committee on this subject. There has been a recent hearing. Of course, in previous Congresses, there have been numerous hearings on this subject for as long as the Senator from Mississippi and I have been Members of the Senate.

    Mr. LOTT. Mr. President, I yield the floor.

    The PRESIDING OFFICER. The Senator from Kentucky.

    Mr. McCONNELL. Mr. President, to make sure we all understand what the provision is in the bill we have been discussing, let's put it this way, Mr. President: This provision only allows a jury to know the victim has received benefits from a third party, such as a health insurer. It allows the jury to know that, I say to my friend from Mississippi, but the jury is free to ignore that evidence if they like. It would allow them to know there was insurance coverage, but the jury is free to ignore that evidence if they like. The provision also prevents health insurers, a third party, from recovering payments it made to the victim. That is what this bill actually does.

    I think it is important just to set the record straight on what is, in fact, contained in this legislation on that point.

    Mr. President, I yield the floor.

    The PRESIDING OFFICER. The Senator from Illinois.

    Mr. DURBIN. Mr. President, I thank my colleagues for joining us in this floor debate, and I hope others will tomorrow, and I am sure they will. It is worth noting that the State of Mississippi, faced with the circumstances described by my colleague and friend, Senator Lott, decided to do what each State has the right to do, and that is establish its own standards of recovering for noneconomic losses.

    It is my understanding they have established a schedule that starts at half a million dollars and, over a period of 10 or 15 years, goes up as high as $1 million or $1.2 million. That has been done by the State of Mississippi, as it could be done by any other State. What we are considering here is what we will do on a national basis.

    I was wondering if the Senator from Kentucky would help me understand the portion of the bill relative to what he described as flexibility in terms of States rights.

    Would the Senator be kind enough to yield, without me yielding the floor, to engage him in a dialog about this State flexibility? Is that permissible under the rules of the Senate? I direct that request through the Chair.

    The PRESIDING OFFICER. If the Senator from Illinois will make a unanimous consent request for the purpose of engaging in a colloquy, that will be acceptable.

    Mr. DURBIN. If the Senator from Kentucky is kind enough to yield to this procedure, I ask unanimous consent—I do not yield the floor—that we be allowed to engage in a dialog about some aspects of this bill so there is a clear understanding on the record of his intention.

    The PRESIDING OFFICER. Without objection, it is so ordered.

    Mr. DURBIN. Mr. President, I thank the Senator from Kentucky. As I have said before, we get dangerously close to Senate debate on this floor from time to time. This just happens to be one of those moments. I am happy to be here to witness it.

    I ask the Senator from Kentucky, what is the Senator's intention in the portion of the bill relative to State flexibility? I want to make certain I understand. If my State has any law relative to medical malpractice, relative to discovery or expert witnesses or, in my case, we do not have a limitation on noneconomic losses, what part of State laws would this new S. 11 preempt, and which portion would it not preempt?

    Mr. McCONNELL. Mr. President, I say to my friend from Illinois, reading from the bill, of which I hope he has a copy, section 11 says:

SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

    (a) Health Care Lawsuits.—The provisions governing health care lawsuits set forth in this Act preempt, subject to subsections (b) and (c)—

    Which I will go through in a minute—

    State law to the extent that State law prevents the application of any provisions of law established by or under this Act. The provisions governing health care lawsuits set forth in this Act supersede chapter 171 of title 28, United States Code, to the extent that such chapter—

    (1) provides for a greater amount of damages or contingent fees, a longer period in which a health care lawsuit may be commenced, or a reduced applicability or scope of periodic payment future damages,

    (2) prohibits the introduction of evidence regarding collateral source benefits, or mandates or permits subrogation or a lien on collateral source benefits.

    Subsection (b) any issue that is not governed by any provision of law established by or under this Act .    .    . shall be governed by otherwise applicable State or Federal law.

    Now, what the flexicaps are designed to do, as I understand it, is to allow a State to, in effect, opt out, consistent with the provisions that I read to my colleague from Illinois, within those parameters.

    Mr. DURBIN. If I could ask my colleague from Kentucky, that paragraph (b) goes on to say:

    This Act does not preempt or supersede any law that imposes greater protections (such as a shorter statute of limitations) for health care providers and health care organizations from liability, loss, or damages than those provided by this Act.

    As I read that, though, I understand that if one's State law is more generous to doctors, hospitals, drug companies, medical device providers, HMO insurance companies, then that State provision would be the applicable provision. Is that correct?

    Mr. McCONNELL. It is correct that this legislation allows states to provide greater protections to health care providers than are contained in this legislation.

    Mr. DURBIN. So it is not a balanced playing field completely. We are not leaving it to the States to decide, for example, that wrongdoers of medical malpractice cases would be treated more strictly, more severely? If there is a stricter provision in the treatment of those individuals, it would be preempted by this act? Is that the way we have explained it?

    Mr. McCONNELL. Again, to ensure the availability of health care services, the states are allowed to provide greater or additional protections to health care providers than are contained in this bill.

    Mr. DURBIN. Then if I might ask, the next section (c)—I am trying to get to the point of let's use an example of the State of Mississippi which has just decided on a cap of $500,000 on noneconomic losses effective January 1 of this year. Now, the underlying bill, S. 11, says that the cap on noneconomic losses will be $250,000. So in that instance, is it the position of the Senator that this bill would not preempt Mississippi law; that Mississippi's number would apply even though it is larger than S. 11?

    Mr. McCONNELL. Yes. This legislation does not preempt existing or future state laws on noneconomic damages.

    Mr. DURBIN. May I ask the Senator to explain subsection 2(c)(2) in terms of defenses available to a party in a health care lawsuit under any other provision of State or Federal law that does not preempt it? I do not understand that particular section. If I have caught the Senator off guard on that particular section, we can return to it at a later time, but perhaps he could explain what that particular section means.

    We can come back. I do not mean to catch the Senator off guard.

    Mr. McCONNELL. Let's come back to that.

    Mr. DURBIN. We can come back to that at some point. I thank the Senator for yielding and providing that additional information.

    As my colleagues can tell, during the course of this exchange we are doing what usually happens in a committee hearing where sections of the bill are explained and members of the committee have a chance to ask questions such as I have asked of one of the sponsors, Senator McConnell. Then perhaps members of the committee say, perhaps, we need to change that language and we offer amendments. That is the committee process.

    For this bill on medical malpractice, we have not done that. We are bringing it directly to the floor. As my colleagues can see, despite the fact that my colleague, the Senator from Kentucky, is certainly an able attorney, there are some complicated elements.

    It is important, if we are going to consider a bill of this gravity, that we do take the time to do it and do it right.

    I also note that a case which I mentioned earlier is a clear illustration of why this bill is fundamentally unfair to victims. I mentioned this case earlier because it involves a woman who lives in the city of Chicago. As I said in my opening statement, this lady, who has written an article in a leading newspaper in our town, says that she is literally the face of tort reform.

    Three years ago, she went to a prestigious hospital in Chicago for a routine surgery to have two moles removed from the side of her head. During the surgery, the oxygen which was being administered to her ignited. In her words, it set her face on fire. It ended with her face in flames.

    In her words:

    My entire upper lip was burned off and much of my nose is gone. For two years, I couldn't breathe on my own, and I now wear a face mask with nasal tubes in what's left of my nose, 23 hours a day. I have endured eight surgeries, with more to follow. The doctors who are trying to reconstruct my face and teeth say the whole process could take up to seven years.

    That is 10 years of surgery from that tragic accident.

    Even then, the scars and burn marks will still be visible and the emotional cost will be with me forever.

    She says:

    I'm 50 years old, and the mistakes made at the hospital have damaged every part of my life—from my career to my personal life to my sense of self. .    .    .

    But today's proponents of medical malpractice reform don't want to consider each case individually. They want to put a cap on damages—regardless of how old a person was when they were injured, how serious the injury, how an individual's life has been affected by the negligence of others.

    Let me interject for a moment. What is at stake in this debate is not just this important issue of medical malpractice but several other important issues. We are now talking about changing, at least in some respects, the right of States to make individual decisions about the lawsuits filed in their States.

    As the Senator from Kentucky said earlier, there are some parts where the States will still have the last word but in other parts they will not. So we will preempt a State's right to establish standards for lawsuits in its State. Now that is an important issue which we consider from time to time, and depending on one's prejudice on the issue before them, they either ignore or honor States' rights. In this case, we clearly do not honor States' rights. The sponsors of S. 11 have decided that on a national basis we will preempt States' rights.

    The other thing that S. 11 preempts that is critically important is the jury system. It is interesting that the men and women in the Senate who came here because of the votes of the people they represent, who trust the decision of the people they represent, would say that when 12 of them are gathered together in a jury box we cannot trust them; they are just not reasonable. They get carried away. And because they get carried away, according to those supporting S. 11, we have to restrain them. The only way to restrain them is to put limits in the law, say to them no matter how much they think this poor lady's case is worth they cannot give her more than $250,000. This bill says we just do not trust that jury.

    Put the good lawyers in the room representing the doctor and the hospital, as well as those representing her, and the fear is, from those who bring S. 11 to the floor today, that they are just going to see this situation and say this is not fair, it is not right, and this poor lady deserves more than $250,000. Because of that fear that the jury may go too far, this bill says: We will stop them. We will stop them in every State in the Union.

    Is it not interesting that when it comes to juries in medical malpractice cases we have so little regard for their ability to find the truth and do what is fair? And yet when it comes to so many other areas of the law, such as criminal justice and the imposition of the death penalty, the jury is sacrosanct; the jury has the final word. When it comes to deciding what this is worth for this lady, we do not trust them.

    She goes on to say:

    Some claim that $250,000 compensates people who are injured.

    I refer to this photograph of this poor lady and what she has been through, and she asks: "Would any healthy person allow their face to be set on fire, or worse, to receive that sum of money?"

    She says:

    Not in the worst type of reality television show.

    Some claim that caps are necessary to protect insurance companies and HMOs. With documented medical mistakes soaring, it is astonishing that federally proposed legislation would first target the victims of medical error, before addressing the errors themselves.

    Now the Senator from Mississippi earlier suggested that I went too far in suggesting we ought to look at the whole issue of medical malpractice. Well, I do not think that is an issue foreign to this debate. I think it is an issue central to this debate. If we are going to reduce exposure to lawsuits, if we are going to reduce the size of premiums, then we certainly have to look to the root cause of the problem. If we do not deal with medical malpractice and the fact that only 1 out of every 50 cases of malpractice ends up in a lawsuit being filed, then frankly no matter how much we lower the noneconomic losses per case, there is still a universe of liability, a universe of exposure, for doctors and hospitals which goes untouched.

    If this is going to be an honest discussion about reducing malpractice insurance premiums and the crisis that they have created among some specialities in some States, then I think frankly, as is said by this poor lady who was a victim, what is wrong with asking how we make our hospitals safer? How do we get our doctors to reach a point where they are making better informed decisions? That is a reasonable inquiry. It is one from which we should not shy away. It is certainly one that applies directly to what we are discussing.

    She goes on to say:

    Some claim that juries are the problem. I trust a jury of my peers to competently determine a fair judgment in cases like mine.

    The proponents of this legislation want to rein in juries in medical malpractice cases, but never question the legitimacy of the jury in cases of the death penalty or other cases of wrongdoing. It appears that their concerns focus more on satisfying specific constituencies than protecting citizens from harm.

    Like many people, I have been injured by poor care at a hospital. More than anything in my life, I wish I could take that day back, to make myself the way I was before the fire exploded all around me. But I can't have that day back. All I can have now is the right to be treated as an individual, to have others understand how this event has changed my life.

    Caps on damages seek to treat all injured people in the same way. No victim is exactly like any other. Devastating injuries affect each life differently and deserve to be treated individually.

    In short, my injuries are personal—though part of a national epidemic of negligence in hospitals. A recent study showed that 98,000 people were killed in hospitals, through neglect, in a single year.

    I'm hoping that Congress and the public will see that each victim of medical malpractice is worth considering on his own and not put arbitrary caps on the personal suffering of so many people.

    That is what it comes down to, a question of individual worth. The question is whether or not we have reached such a point in our society where we have to step away from the rights of this individual who was clearly a victim—as much a victim as someone who would be shot by a gun on the street or hit by a drunk driver on the road—whether we have to say in her circumstance we cannot trust a jury of her neighbors and people in her community to decide what that injury was worth.

    Have we reached that point? I hope we have not. I hope, instead, we will do something which would be a breakthrough in the Senate—that we will bring together the parties who are clearly responsible for where we are today. Those include insurance companies.

    The Senator from Mississippi conceded the point. He said: I will concede that the investments of insurance companies have something to do with the premiums, of how high they are.

    Well, though the Senator from Mississippi conceded the point, this bill doesn't have anything to do with it. It does not bring to task the insurance companies for the premiums they are charging or hold them accountable for premiums they will charge in the future.

    We can keep noneconomic losses, limit the amount of money the victims like this can recover, find premiums still rising through the roof as they have in many States that already have these caps, and be powerless to respond. Our friends in the medical profession who are rightly asking us to do something should be enraged at that point, as well. Having been promised this so-called tort reform—though I don't believe it is real reform—that this limitation on the amount that can be recovered on individuals is going to be the answer to their prayers, it may fail. That is not fair to them.

    Bringing together in one place the medical profession to deal with lessening medical malpractice, which according to the Bush administration spokesman, Dr. Clancy, has reached epidemic proportions, bringing together the insurance companies, which because of bad investments have seen their premiums skyrocket to try to make up the difference, bringing together the attorneys to make sure frivolous lawsuits are not filed, can bring a solution. If that solution is to be immediate—and it should be—it should necessarily involve some help in the Tax Code for doctors who are currently facing these problems, as well as hospitals.

    I would like to know if the Senator from Kentucky would engage me, if he would explain why he has included in this medical malpractice bill, that was originally designed for doctors and hospitals, protection against lawsuits relative to medical device manufacturers and drug manufacturers. Why were these two additional groups included in S. 11 to limit their exposure to lawsuits? I don't recall any reports of a crisis when it comes to insurance for pharmaceutical companies.

    I ask unanimous consent that the Senator from Kentucky be allowed to respond and I still retain the floor.

    The PRESIDING OFFICER. Without objection, it is so ordered.

    Mr. McCONNELL. I want to respond to some of the other suggestions my friend from Illinois has made, so if he completes his comments, I will be happy to respond.

    Mr. DURBIN. Fair enough. I yield the floor.

    The PRESIDING OFFICER. The Senator from Kentucky.

    Mr. McCONNELL. Mr. President, with regard to medical errors, were we not debating a motion to proceed, and if we were on the bill, I am sure my friend from Illinois or other Members of the Senate would offer amendments with regard to medical errors. A medical errors bill has passed the House of Representatives.

    I don't think anyone is suggesting—certainly not I—that the underlying bill which we are seeking consent to get before the Senate should not be amended or improved in a variety of different ways. However, it is pretty hard to offer an amendment when we are on a motion to proceed.

    With regard to the lady who was horribly disfigured—this picture displayed by my friend from Illinois—it is important to remember that her damages would not be capped at $250,000. She would get all of her economic damages—all of them—plus $250,000 noneconomic damages, plus, in all likelihood, punitive damages on top of that equal to twice economic damages or a quarter of a million, whichever is greater.

    So the notion that there is simply no other compensation, that there is a $250,000 cap, is not accurate, I say with all due respect to my friend from Illinois.

    Senator Lott read off a few moments ago a list of awards under the California system—which is the underlying bill, the one we are seeking to get before the Senate, which this bill mirrors—of multimillions of dollars for compensatory damages; and punitive damages in a case of truly egregious events could be twice the economic damages. Then there is a pain and suffering award potential of $250,000 on top of that.

    The people who do not get a penny are the ones who cannot find a doctor because the doctor is no longer there. One of the examples I used in my remarks earlier, Leanne Dyess from Mississippi, did not get a penny. Nor did the women who give birth by the side of the road. They don't get any money when their doctors have been driven out of business.

    So the point I make in response to my friend from Illinois: This is not nearly as draconian as he suggests. On the economic side, there are no limits at all. Under punitive damages, there could be twice what compensatory damages are, and there is a $250,000 possibility on pain and suffering already. We think that clearly the victims are not denied adequate compensation.

    As we have already pointed out with several speeches, the States that have tried this kind of approach have lower malpractice insurance premiums and do not have the crisis that we have in most of America today without that kind of legislation.

    Mr. DURBIN. Will the Senator yield?

    Mr. McCONNELL. I will not yield at the moment.

    With regard to an earlier reference to the FDA, if a product is found to be appropriate by the FDA, the companies should not have punitive damages assessed when they follow the FDA approval process. Punitive damages are for illegal conduct, and if the Federal Government blesses that conduct, it can't be illegal. However, there is no cap on economic or noneconomic damages against the drug companies in that situation.

    The other part of the FDA section prevents doctors from being sued on product liability cases just because they prescribed a drug that the FDA has approved.

    That is the answer to the question the Senator asked earlier.

    Mr. DURBIN. Will the Senator yield?

    Mr. McCONNELL. I yield the floor.

    Mr. DURBIN. Let me go on to say that in this case the question I was going to ask the Senator from Kentucky is this: This poor lady was a victim in my home State of Illinois which does not allow punitive damages in medical malpractice cases. My question for him, which I will save for a time when he has a chance to answer—whether or not, under those circumstances, this victim of medical malpractice has been allowed to recover punitive damages under his bill.

    The reason I ask that question is I think that the section relative to State flexibility and protection of State rights is not altogether clear. If he is saying that this lady who was a victim of this explosion in her face, which led to multiple surgeries over a projected 10-year period of time, might have recovered punitive damages under S. 11, then in my home State you cannot turn to punitive damages. Your recourse, in her case, is for noneconomic losses, which are limited.

    I might also add the Senator should note his punitive damage section includes a phrase which is a very restrictive phrase. In my home State, when punitive damages were allowed they were allowed for reckless misconduct or willful and wanton misconduct, which is a higher level of negligence.

    Under the specific language of S. 11, in order to recover for punitive damages, you must show a malicious intent to injure. So to have cases of gross negligence is not enough. There must be "malicious intent to injure."

    Another question which I am going to ask the Senator from Kentucky to consider, and perhaps respond to at another time, is whether or not a situation where a doctor is either on drugs, addicted to drugs, or intoxicated, is a case of malicious intent as opposed to gross negligence or willful and wanton misconduct. Because if the doctor is clearly addicted or intoxicated and as a consequence someone is severely injured, the question in my mind is, Is that plaintiff, that victim, then strictly limited to $250,000? Is that a question of negligence or is that a malicious intentional act?

    The reason I raise that is because though we come to the floor and have these phrases go back and forth in debate, in a courtroom it makes all the difference in the world, as in this case or similar cases where States allow punitive damages.

    From my point of view, I think this bill is certainly deserving of a committee hearing where many of these questions could be asked and answered before taken up on the floor. We should have an amendment process. At the end of that process, we should decide whether or not this is the only way to deal with the malpractice insurance premium crisis, which we are facing in this country.

    I will also add at this point, the Senator made reference earlier to some of the challenges facing my home State of Illinois as part of the crisis which he has referred to in his opening remarks. I might also note it was just a couple of weeks ago in his home State of Kentucky that a report that became very controversial was put together by the Program Review and Investigations Committee on the cost of medical malpractice insurance and its effect on health care. It turned out when this report was filed there were those who tried to suppress it so it would not be made public because it addressed the question of why malpractice insurance premiums were high in the State of Kentucky. They raised, I think, some important points that deserve being part of our debate, since the Senator from Kentucky has been kind enough to bring in my home State of Illinois.

    This report talked about the impact of medical malpractice costs and access in Kentucky, and I quote:

    The total number of physicians in Kentucky has increased in every year for which data was available—1981 through 2000—suggesting that the cost of medical malpractice has not reduced the overall availability of physicians for the State.

    It goes on to say:

    The difference of premiums in states with joint and several liability [another provision in S. 11] and other states was generally not statistically significant.

    Then it went on to say:

    Premiums in states with caps on non-economic damages were not statistically different than in other states.

    This is a report from the State of Kentucky written as it considered capping its own noneconomic losses. They concluded:

    Premiums in States with caps on non-economic damages were not significantly different than in other states.

    It said:

    Premiums for internists and general surgeons were higher in States that capped the amount of punitive damages that may be awarded than in other states.

    .    .    . There was no evidence that limiting the amount that attorneys may charge for fees resulted in lower premiums.

    That is from the State of Kentucky, this controversial report, which many people did not want released to the public.

    I think it raises questions as to whether or not the premise of S. 11 is a sound premise. Certainly in the State of Kentucky, people who looked at it came to the opposite conclusion.

    Let me say a word about attorneys' fees. There has been a lot said here about attorneys and contingency fees. The contingency fee is the way a poor person comes to court. Unless you are independently wealthy and can finance a lawsuit and pay a lawyer by the hour, your only recourse is to say to the lawyer, You recover your fee if I recover a settlement or a verdict. That is what a contingency fee is.

    In this bill, S. 11, the authors go to great lengths to limit the amount of fees that can be recovered by attorneys filing medical malpractice cases.

    I will tell you in my experience as a down-State Illinois attorney—I don't speak for any other part of the State or for current practitioners—it was not uncommon to say to someone coming in: I am going to charge you a 25 percent fee if we can settle this before court; a third if we have to go through a trial; and up to 40 percent if there is an appeal. You will also have to pay costs, but I will try to hold onto those in the hopes that ultimately you recover and we can take that out of the ultimate settlement.

    Many people would say, What is my recourse? I can't pay for this lawsuit. I know it is expensive to hire experts, it is expensive to have attorneys prepare the case—for this lady who was a victim of malpractice and many others.

    In this particular law that is before us today, we try to put, at least it is suggested that we put, limits on the amount attorneys can be paid. We take away from the individuals the right to make that decision with their own attorney.

    Undoubtedly there have been abuses on attorneys' fees. I am sure that is the case, as there have been abuses on medical fees and abuses on fees charged by hospitals. But to say we are going to have a one-size-fits-all, one single approach nationwide as to the amount you can recover is in fact to work a disservice as to whether or not attorneys will be able to take these cases.

    I spoke to an attorney today who took an extremely complicated case in Chicago who said before he finally reached a settlement his firm had incurred $250,000 in costs alone and there was no way that a 70-year-old plaintiff could pay them. So this attorney and his firm decided they would put the money on the table, believing the case was meritorious, hoping ultimately they could recover it if there were settlement or verdict. And there was in this case.

    But in this approach here, there is an attempt to try to limit the amount attorneys can receive. I think people like the woman I showed here, this lady here, who is a victim and certainly one deserving of any compensation coming back—but she may never have her day in court, may never have an attorney, may never get a chance to submit her case to a jury of her peers if some attorney doesn't offer a contingency fee arrangement. I have serious concerns about where this will take us in terms of limiting these contingency fee contracts. That, to me, is a concern which should be I think debated and debated openly here.

    I also want to raise a question—I hope if the Senator from Kentucky does not want to address the issue at this point; he will at a later point—as to his qualifications of experts in medical malpractice cases. I want to understand the limitations he is putting on the experts who come before the court.

    In each trial I have been involved in, it was a decision to be made by the judge initially, and ultimately by the jury, as to the credibility of an expert witness. The difficulty which a plaintiff has in a medical malpractice lawsuit, in any city—whether it's in Illinois or Kentucky or New Hampshire—is most doctors are not anxious to testify against their colleagues. So if you are a person who has been injured in a malpractice case, you have to look hard, far, and wide to find an expert who will come to the courtroom and say the doctor did something wrong.

    In this particular legislation there is a limitation on the types of doctors who can testify in medical malpractice cases. I hope tomorrow when we return to this bill the Senator from Kentucky will consider addressing that particular issue as well—what kind of limitations he puts in place. Usually it is a case for the judge to decide initially and the jury to weigh. If they take a look at the doctor who is brought in and say, This doctor doesn't even have a specialty that relates to this lawsuit, or has no experience or really no testimony, then they discount this and perhaps even reject it and maybe even use it against the party who called this doctor. But to establish standards of evidence in this law—I think at least during the course of debating this motion to proceed, we should have an opportunity to discuss the matter.

    I yield the floor.

    The PRESIDING OFFICER. The Senator from Kentucky.

    Mr. McCONNELL. Mr. President, the Senator from Illinois mentioned the Legislative Research Service's study in Kentucky, which has been quite controversial and discredited by some. I think a more interesting study was released today by HHS here in Washington which revealed that the States' that enacted limits on noneconomic damages and medical losses have been about 12 percent more for physicians per capita than States without such a cap.

    As was pointed out earlier by a number of speakers on this side of the issue, California and Colorado tend to prove the point. This legislation is modeled after the California legislation. They enjoy lower malpractice insurance premiums in California. Widely believed by everyone is that the reason for that is a sensible system of caps on noneconomic damages.

    With regard to the limitation of lawyer's fees, I would remind everyone that is for the benefit of the victim because every penny the lawyer doesn't get, the victim does. The notion that somehow there would not be lawyers available to pursue worthy litigation if there were some kind of reasonable cap on lawyer's fees, it seems to me, is not substantiated by the facts. Under the Federal Tort Claims Act, there has been a 25-percent cap for many years. I never heard of any crisis created by the absence of lawyers willing to bring litigation under the Federal Tort Claims Act. Certainly there should be a reasonable limitation on fees. We want to make it possible for lawyers to be adequately compensated. But to protect the victim from his own lawyer, it seems to me that some reasonable limitation is appropriate. This bill includes what we believe to be a reasonable limitation.

    The Senator from Illinois also suggested the bill only allows punitive damages in case of malicious intent. It is not just malicious intent; the bill also allows punitive damages when the doctor deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer. Interpreted, that means that would apply to the situation of the drunk doctor Senator Durbin refers to, or a doctor who was on drugs or somehow incapacitated through this kind of behavior. This would clearly mean that punitive damages would be allowed in this case.

    We are making a careful list of all the questions which the Senator from Illinois asked. All of them are good questions. They deserve a response and further argument for getting past the motion to proceed and getting onto the bill. So if there are improvements that the Senator from Illinois and others think should be made to the bill, offer those amendments, debate them, vote on them. It could well be that by the time we get to the end of this bill it would be in such a form that the Senator from Illinois might applaud and want to clear the Senate. Who knows.

    But at the moment, what we are left with is a cloture motion which the leader will later file on the motion to proceed in order to even get into a position to do anything beyond having an interesting back and forth conversation between the Senator from Illinois and myself and get beyond that and actually begin to offer amendments to the bill and have debate on them and see where the votes may lie.

    I think that pretty well covers my observations for today. We look forward to continuing the discussion tomorrow.

    I yield the floor.

    The PRESIDING OFFICER. The Senator from Illinois.

    Mr. DURBIN. Mr. President, I thank the Senator from Kentucky for his invitation to improve the bill. I believe it would be a better exercise done in a committee setting with experts and witnesses and Senators having the opportunity to debate it openly and amend it and to include not just changes to the rights of malpractice victims to recover, but also the insurance industry and the medical profession. I think all of those would make for a very constructive and important and timely undertaking which, unfortunately, we are not doing here.

    This is a vote to bring this bill to the floor immediately, and to literally debate it and pass it in a span of 3 or 4 weeks that we have left before the August recess.

    I might also add that California is often referred to in this debate. It is true that in 1975 California passed a malpractice law which put caps on the amount that individuals could recover from malpractice lawsuits. They have not changed that $250,000 cap in the interim. The actual value has been calculated. Because there has been some 28 years since California put that in place, inflation has really taken its toll on $250,000. Its value today is about $38,877.

    Mr. McCONNELL. Mr. President, will the Senator yield for a question on that point?

    Mr. DURBIN. I am happy to yield.

    Mr. McCONNELL. If we indexed that amount under this bill, would the Senator then support the bill?

    Mr. DURBIN. I would be open to the Senator bringing that in as an option, as long as we are dealing with honest figures and fair compensation. But I would also say that in most States which have caps, there are exceptions. For instance, in the State of Mississippi, there were exceptions where judges could see extraordinary cases like the one I mentioned earlier and say that should not be subject to the caps. My problem with California is it is a blanket cap.

    Mr. McCONNELL. I agree with the Senator from Illinois that some kind of inflation adjustment is an appropriate suggestion.

    Mr. DURBIN. I hope the Senator also agrees with me that we ought to allow some exceptions to the cap. I don't want to put words in his mouth. But that is what I think. I think those exceptions should be allowed.

    I would also say it is important to remember if there has been any containment of malpractice premiums in California, they also followed Proposition 103 which is insurance reform. It is not just the limitation on malpractice law that California has, but they passed insurance reform. After that reform, we saw some changes in the amount that was charged to physicians.

    The last point I want to make is this: There has been talk that if we don't do something about malpractice insurance, some doctors are forced to leave the State in which they are practicing. I don't doubt that is a fact. I have spoken to doctors in Illinois in specialties in certain areas who are seriously considering leaving. I hope they don't have to. I hope we can do something here to avoid it.

    But the fact is, in California there are indicators of significant physician dissatisfaction with medical malpractice, and they have the caps. There appears to be widespread problems recruiting physicians. Only a third of California physicians would still choose to practice in California, if they had to do it over today.

    To suggest that this is all about malpractice premiums and whether you have a cap on how much victims of malpractice can recover, the California experience does not necessarily prove that.

    Let me also say I would take exception—and we can debate this, I am sure—to my colleague's interpretations of the punitive damage section. It is true there are two elements here for punitive damages. They are both possibilities.

    One is that the person who is being charged with malpractice has acted with "malicious intent to injure the claimant."

    So that is an intentional act.

    Then it goes on to say, "or that such person deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer."

    I would say to my colleague from Kentucky and those who drafted this bill that is unusual wording, and wording I am not familiar with. I would have to study that. But I think to talk about the deliberate act rises to intentional conduct again. The example I used was not a deliberate act but the act of a doctor who was under the influence of alcohol or drugs who may have imbibed or taken drugs, and then in that state of mind did a careless thing which resulted in medical malpractice. Whether that is included in the phrase "deliberately failed to avoid unnecessary injury," I think is arguable. It should be clarified.

    I also want to say in fairness to my friend from Kentucky, since Kentucky and Illinois have been part of this debate, that a report of Wednesday, August 9, 2000, in the Courier Journal noted that 329 physicians had been disciplined in Kentucky for alcohol or drug abuse, incompetence, and other offenses from 1990-1999 according to a report issued on questionable doctors.

    I might also say, Kentucky was ranked as one of the 10 best States in 1999 in responding to this problem. I only raise that because, as painful as it is to concede by anyone, including those on the Senate floor, and certainly those in the medical profession, there are, in fact, cases where individuals have been involved in alcohol and drug abuse and then involved in malpractice.

    What I am hoping we can do, if we seriously want to deal with the malpractice issue, is to go beyond limiting the amount that victims can recover and bringing this conversation to how we police the ranks, so doctors who are not doing the right thing are not going to continue to commit malpractice. That isn't fair to the patients, and it certainly isn't fair to other members of their profession who end up paying higher premiums as a result of it. I think that should be part of any legitimate discussion that deals with this malpractice crisis.

    Mr. President, I know my colleague from Kentucky has yielded the floor for the evening, and I am prepared now, for my side, to close the debate on this matter and perhaps return to it tomorrow. At this point, until the Senate business is clear, I suggest the absence of a quorum.