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

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

    Mr. DURBIN. Will the Senator yield for a question?

    Mr. KENNEDY. I also reference a really excellent article in U.S. News and World Report from June 30 that shows on a chart what has been happening with premiums going from $2.9 billion to $4.9 billion and, on the other hand, points out insurers' payments after the jury verdict was $147 billion in 1993 and in the year 2001, $172 billion—so basically a fairly flat line across almost a 10-year period, a dramatic increase in the premiums and virtually flat in terms of the payments.

    I am glad to yield.

    Mr. DURBIN. If the Senator from Massachusetts would yield for a question, I would ask him, since he has been our leader in the Senate on the issue of a Patients' Bill of Rights to ensure that patients across America have their rights against HMOs and managed care companies—I ask the Senator from Massachusetts, is he aware that despite the copious debate on the floor about the crisis facing physicians across America, S. 11 provides a limitation on liability not just for doctors and hospitals but also for HMO insurance companies, managed care organizations, pharmaceutical companies, and manufacturers of medical devices?

    Mr. KENNEDY. The Senator is exactly right. It is not only limited to those groups the Senator has cited, but there is a strong belief that it would also apply protection for billing fraud, tainted blood to patients, fixing of prices of drugs, deliberately overcharging Medicare and Medicaid for health services, as well as making defective implants, and violating nursing home safety standards.

    We don't hear much from those who are supporting this about why all of these various groups need this kind of protection. It is a catch all, not dealing with what was stated by many of those who were speaking in favor. This is a catch all for anything to do in any way, under any pretense, with the health care industry.

    Mr. DURBIN. May I ask the Senator from Massachusetts another question through the Chair. There is a section in this bill I would like to call to his attention, section 13. I would like to read it to the Senator and ask him to respond, since he has been the sponsor of a Patients' Bill of Rights, so that once and for all HMOs and managed care companies will be held responsible and accountable for medical decisions they make that injure patients. I ask the Senator if he would respond and tell the Senate on the record what it means to include in S. 11 a section 13, with the following language—sense of Congress:

    It is the sense of Congress 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.

    I ask the Senator from Massachusetts, does this sense of Congress language guarantee that those who are harmed by health insurers who make bad decisions about diagnostic procedures, stays in the hospital, necessary surgery—is this language some refuge and comfort for them that finally now they will have their day in court and now, with this sense of Congress, they can hold these health insurance companies accountable?

    Mr. KENNEDY. It really insults the intelligence of the average family, and the average family is far too bright and smart not to understand what this says and what it does not. As implicated in the Senator's question, this is a sense of the Senate of something we should be doing by legislation which we have attempted to do with the Patients' Bill of Rights.

    This sense of the Senate is meaningless. It isn't even worth the paper it is written on, because of all the other provisions included in the legislation which the Senator has spoken to so effectively during the course of the debate.

    This is sort of a catch all, a "make them feel good," section, for some to be able to say: Look, they have language in here that it is the sense we all feel this way. But, of course, it says this in a piece of legislation which will effectively undermine the protections for working families, for their parents, and for their children.

    We have many things that can be done to provide help to some of those who have the particular specialties which need attention, but the idea that you have these two lines of a sense of the Senate to effectively say: We have done all of these bad things, and we have put them in law, but we want a sense of the Senate to make you feel good and show that we are actually protecting the average family in this country—as the Senator well knows, it isn't worth the paper it is printed on.

    Mr. DURBIN. If I may ask one last question of the Senator?

    Mr. KENNEDY. If I may just add, as the Senator remembers—I hope the American people do—we had weeks of debate on the floor on the Patients' Bill of Rights. As the Senator remembers, what underlined that whole debate was that we ought to put the well-being and the health care interests of the patients of this country ahead of the bottom line of the HMOs. This was a debate in which the American people really participated. It was sidetracked because the administration refused to allow States to make the ultimate decision about compensation for individuals. That was in the final compromise which this administration refused.

    So for all those who want to talk about States rights issues on this and the States know best—all those who make that argument—they somehow miss the importance of the real protections for people.

    Mr. DURBIN. My last question to the Senator: If this sense of the Congress is not worth the paper it is written on, as the Senator has said, is it fair to conclude that since the HMOs and managed care companies prevailed before when the Senator from Massachusetts offered his Patients' Bill of Rights to protect individuals from insurance companies making medical decisions, is it fair to conclude that if S. 11 were enacted as written, limiting the liability of these HMO and insurance companies, these companies would win again, that we would reward them again for bad conduct, despite the sense of the Senate, sense of Congress, section 13 of this bill?

    Mr. KENNEDY. I think what you could say is that this is the anti-Bill of Rights for the American consumer because it goes in just the opposite way. Rather than guaranteeing protections, it undermines whatever protections are out there. This is a battle we have been fighting over and over again in recent years, making sure the most basic protections for our consumers and families in the health care area are not undermined.

    As the Senator has pointed out, this is going in the opposite direction.

    Mr. DURBIN. I thank the Senator.

    Mr. KENNEDY. I thank the Senator.

    The PRESIDING OFFICER (Mr. ALEXANDER). The Senator from Nevada.

    Mr. ENSIGN. Mr. President, I wish to respond to a few of the items just laid out in the Senate and try to point out what I think are glaring inaccuracies.

    First of all, the Weiss report we have heard so much about from the last two speakers uses numbers from the Medical Liability Monitor. The Medical Liability Monitor just provides the numbers. They are not a group that is pro tort reform or anti tort reform. This is what the editor, Barbara Dillard, says about the numbers that the other side of the aisle is using to somehow skew what the premiums are doing in those States that have enacted tort reform. Let me read some of the most salient parts:

    The Weiss ratings analysis of medical malpractice caps cites the Medical Liability Monitor as the source of data Weiss uses to calculate "average" and "medium" premiums for physicians during the last 12 years. While we are an independent news publication and take no position on tort reform, or other proposals to improve the medical liability climate, we feel it is necessary to comment on the use of our statistics because some readers have expressed concern. The median and averages in the Weiss report are not the numbers we report in our annual rate surveys. Weiss may have taken our numbers, the amounts and increases of premiums paid by doctors State by State, and used them to arrive at their statistics. But it is not possible from the report to say definitely how our numbers have been used. It is our view that it is impossible to calculate a valid "average" premium for physicians, or for physicians in a particular State or territory, and we state that clearly in the executive summary of our rate survey.

    But the editor of the Medical Liability Monitor goes further. She advised the leader's office that:

    It is misleading to use median premiums compiled with data from the Medical Liability Monitor to demonstrate the effect of noneconomic damage limits on liability rates.

    This is exactly what Weiss does. That is the report they have been quoting here. The report uses median annual premiums compiled with data from the Medical Liability Monitor to try to demonstrate the effect of noneconomic damage limits on liability rates. Not only is this wrong, it downright misleads the public.

    Let me refer to some of the other issues they were talking about. Half of the States have enacted medical liability reform. My State did that a year ago. It has caps. If you look at my State, as far as the numbers, it would look like it hasn't worked. It takes a minimum of probably 8, 10, 12, or 15 years to go through the courts to find out whether the caps are going to be upheld. If the insurance companies are unsure whether the caps are going to be upheld or not, there is no predictability there because they can reach way back—once it is held unconstitutional, they can go back and try those cases and get those awards.

    That is why in California it took so long—from 1975 until the mid-1980s—to find out whether the law was going to work. Colorado and California have now had their laws in place long enough to stabilize rates. Let's look at those two States, in major cities, compared to other cities around the country.

    Here are Los Angeles and Denver. We will start with the general surgery. It is almost $37,000 in Los Angeles for the medical liability premiums for the year; that is for a general surgeon. In Denver, it is around $34,500. New York is about $51,000. Las Vegas was $70,000. It is a lot higher this year in Las Vegas. In Chicago, it is $68,000. In Miami, it is $174,000. The cities in the gray on the chart are States without medical liability reform. The two in the white have had medical liability reform in place long enough for them to have predictability.

    This whole debate isn't about hurting patients; it is about helping them to have access to quality care. In my State, we had a level I trauma center close for 10 days because of a crisis, where the specialists who were treating patients there could not afford the medical liability insurance anymore. So they had to say: We cannot come in there and practice because we cannot afford the insurance. The Governor of our State, within a week, called a special session of the legislature. They enacted, in a bipartisan way, caps. Unfortunately, like a lot of the caps in the country—and they use a lot of these statistics—they are similar to the caps in my State where they have loopholes that you can drive a truck through, which makes the legislation pretty much, as far as a court of law is concerned, ineffective. That is why there is a move in my State to close those huge loopholes down to where just the most serious cases actually have unlimited pain and suffering type of awards.

    In our State, the way they reopened the level I trauma center in that special session of the legislature—not only did they enact a $350,000 cap for the general population but for the level I trauma center they put it under the State. Guess what. Our State has $50,000 caps total—economic, pain and suffering, medical, the whole thing. That is the only way they could get the level I trauma center back open. Why did they do it? They knew there was a crisis. People had died, and more would die if they didn't reopen the trauma center.

    Well, how bad does it have to get in the U.S. for us to say there is a crisis? When will the other side realize how bad the situation is in America? We are losing specialists. People are leaving the practice of medicine—especially those specialties and subspecialties in which we already have a shortage in many areas; and new people are not going into these areas because they see the writing on the wall. They see it is going to be too expensive for them to go out and practice.

    I have a good friend from Las Vegas, Dr. Spoon. We were talking a couple months ago. One of his favorite things to do in his practice—he is an obstetrician—is to deliver babies, especially those high-risk pregnancies. He got so much enjoyment from bringing them to the point where they were successful. His insurance company made him stop performing high-risk deliveries, and they also cut him down from 250 or 300 deliveries a year, and he can deliver no more than 125 babies a year.

    Southern Nevada is the fastest growing metropolitan area in the country. Yet we are losing OB/GYNs and new ones are not coming in. So what happens in that area is women are having serious trouble locating OB/GYNs to deliver their babies.

    I want to try to talk a little bit about the bill and what it really does do and try to clear up some of these issues. First, to go back to premiums. It was said that in places such as California premiums and caps on economic damages—caps on pain and suffering don't work. According to the CBO, they do work. H.R. 5, which is virtually identical to the bill we have today, would significantly lower premiums for medical malpractice insurance from what they would otherwise be under current law. Premiums for medical malpractice insurance ultimately would be an average of 25 to 30 percent below what they would be under current law.

    The Congressional Budget Office is nonpartisan, and everybody is supposed to respect the numbers they put out around here. They certainly don't have any pro or con as far as tort reform is concerned. There are others such as the U.S. Department of Health and Human Services that say States with limits of $250,000 or $350,000 on noneconomic damages have average combined highest premium increases of 12 to 15 percent—that is average combined highest premium increases—compared to 44 percent in States without caps on noneconomic damages.

    The Joint Economic Committee of the Congress says that tort reform will reduce overall spending on health care savings by between $67 billion and $106 billion over the next 10 years.

    I wish to talk a little bit about what kinds of economic damages. That has been criticized. We don't cap economic damages. What can you get in economic damages under this bill? You can get all lost wages and benefits. Lost earning capacity. They say it hurts children. You get a child who gets hurt because of malpractice and you can calculate what that child would have had over the next 60, 70 years.

    Mr. DURBIN. Will the Senator yield for a question?

    Mr. ENSIGN. They may not have the education to know what their total potential was but it is 60 or 70 years' worth of earnings they can get in economic damages. That can be significant. I will freely admit it is not what Barry Bonds would get if he got hurt, or LaBron James, the new basketball player. They would obviously get a lot more money because they have the potential of making so much more money. But this child would still get a significant amount.

    Let me go through these points, and then I will yield for a question.

    All medical expenses would be covered under this bill: long-term care, assisted living devices, child care, household services, lost time, special medical damages, value of care, counsel, advice, aid, comfort, counsel for children, parents, and spouses. All of those are possible under economic damages in this bill.

    The final point I wish to make is this: Does this capping hurt patients? We just have to look at Colorado and California and ask: Are there people out there being hurt? I submit there are a lot more people being hurt and going to be hurt in States such as Nevada where the doctors are leaving, where the doctor will not be in that emergency room or will not be able to deliver a baby, especially in those high-risk pregnancies.

    This one case in Florida is a very good example. I actually met this gentleman. He is a physician himself. He was not performing duties as a physician at this time, he was a parent of an injured child. His name is Dr. Frank Shwarin. His 4-year-old child in Naples, FL, fell and hit his head on the side of the swimming pool. This was in July of 2002. The father is named Frank and Craig is the son. He rushed him to the nearest hospital only to find that none of the neurosurgeons on call would treat patients under 18 years of age. Why? Because they could not get medical liability coverage to treat, even in an emergency situation, a pediatric neurosurgery case. They had to medevac his son a couple hours away. Fortunately, because the father is a doctor, he was able to keep his son alive during that time.

    A woman testified before the Senate that when the level I trauma center crisis happened in my State, her father died when that trauma center was closed because he had to be sent to another emergency room, and an emergency room is not a trauma center. They do not have the kind of expertise to treat severe trauma. As a result, her father died.

    We cannot guarantee he would not have died in the trauma center, but we can guarantee he would have had the best possible care and the best chance of living. That is what I believe this debate has come down to: The system is out of balance now. It is not working. To correct this imbalance, we have to start reining in some of these frivolous, outrageous jury awards.

    I yield for a question.

    Mr. DURBIN. Mr. President, I thank the sponsor of the legislation for coming to the Chamber. I want to give him an opportunity to complete his statement, and perhaps at the end of that statement, if he and I can engage in dialog or debate, that would be fair. I do not want to interrupt his train of thought during his presentation.

    Mr. ENSIGN. That would be fine. I have a couple other issues to go through. There are a few other cases I would like to bring to the attention of our colleagues.

    First, because we need to put a real face on this issue—we need to put a face on the patients, and I think it is legitimate to put a face on the other way. I think it is legitimate to put a face on somebody who has had a claim of malpractice and actually had malpractice committed against them, and it is also fair to put faces on those people who now are having trouble finding the kind of health care they need.

    This is a balancing act, there is no question about it. There is no perfect answer to this situation. I wish there were. The fact is, the current system is driving health care providers out of the practice of medicine, hospitals are closing down, and we need to correct the situation so that when we seek health care in an emergency situation or in a nonemergency situation, we will have the kind of care we need.

    A friend of mine in Las Vegas has Parkinson's disease and goes down to Loma Linda—I told this story earlier today—to see his subspecialist in neurology to treat this disease. He had some fairly radical surgery where they actually separate parts of the brain. He has had very good success with it. He had a specialist talked into moving his practice to Las Vegas shortly before the medical malpractice crisis hit in Las Vegas. Once that hit the news, the guy said: Sorry, I live in California where we have caps. I cannot go to Las Vegas and pay $250,000 a year for my practice for medical liability coverage. I cannot afford to do it. Why would I do that when I have a good practice here, we have caps, and it is working well in California?

    He wanted to move to Las Vegas. He was ready to go with his family. He liked the quality of life in Las Vegas. He did not go simply because he cannot afford to take that kind of economic hit. So people in Las Vegas have to drive down there.

    Most of the time those are not emergency cases, but for those cases that are an emergency, it is just a shame.

    People say this is a State issue. I would counter that this is the United States of America, and we are supposed to be able to live where we want to live, and now we are saying to people: No, you cannot go there because of medical liability premiums, you cannot afford to open up your practice because of medical liability premiums. People should be able to find the kind of health care they need wherever in the United States and live the quality of life and obtain the best health care they can possibly get based on what is available in the area. I do not think outrageous premiums should be the limiting factor.

    Let me close with this point, Mr. President. Earlier there was debate about punitive damages and that we are protecting big companies. Under this bill, we do protect companies that make medical devices if they have followed FDA regulations. In other words, the manufacturer would not be liable for punitive damages if it satisfied FDA's rigorous approval process and if the harm to the patient did not result from the company's violation of an FDA regulation. If they played by the rules that the Government set down, we protect them in this bill from noneconomic—we do not protect them from economic or from medical expenses. But if they violate the FDA rules, then they are not protected. I think that is fairly reasonable. That is why we think this bill is a reasonable compromise, is a reasonable approach to solving what I believe is an out-of-control system.

    I will be happy to yield for questions.

    Mr. DURBIN. Mr. President, I thank the sponsor of the legislation. I would like to ask him this question. Virtually every example the Senator has given, every compelling example he has given for this legislation involves doctors paying malpractice premiums. Yet as he has written this legislation, it goes far beyond providing limitation of liability for doctors. It includes limitation of liability for HMOs, managed care, pharmaceutical companies, medical device manufacturers, and nursing homes.

    Can the Senator from Nevada explain to me why he has not come before us and argued on behalf of HMOs and why their exposure to liability for wrongdoing is a source of concern and leads to, he thinks, the need for legislation?

    Mr. ENSIGN. Mr. President, we know we live in a litigious society. We are sue happy today. Everything is somebody else's fault, and we immediately go to court. Because of the nature of our courts, it is easier to settle. When we settle, it drives up the cost for all of us. A lot of the cases never make it because it is too expensive to take the case all the way to court.

    A lot of companies especially are self-insured for certain amounts of money. It is easier for them to calculate the cost of going to court, and what happens in the long run is that all of us pay for that in higher premiums. When we have higher premiums, it is pretty simple. We end up with a situation where employers cannot afford it. A lot of small employers especially are dropping their health insurance coverage and we are ending up with 41 million uninsured in this country and a big part of that is the cost, not only of the premiums to doctors but just the whole cost of defensive medicine that we have to practice today because of the fear of being sued.

    Mr. DURBIN. So if the Senator from Nevada will yield for another question, through the Chair, is the Senator from Nevada going to bring for us then more evidence, as he has when it comes to doctors, as to the insurance crisis facing drug companies in America, which as I understand are the most profitable corporations in America with an average annual return of 18 percent on capital, about 6 times the rate of return of the Fortune 500? Is he going to tell us about the liability exposure of HMOs that really necessitate this protection which he is building into his proposed law, S. 11? Is he going to tell us about the medical device corporations that have made faulty products which are causing problems across America and how their exposure and liability necessitate this need to limit their accountability and cap the recovery of innocent people who are victims of their misconduct?

    Mr. ENSIGN. If the Senator would vote for us to go forward with the bill tomorrow when we have a cloture vote, we will have a lot of time to debate this. We can amend it and go forward with this debate. So I hope he will join us in voting for cloture because I do have a lot of evidence to justify the various provisions in the bill.

    The bottom line is we all know that today it costs around $900 million to bring a single new drug to the market. I am not here to defend the pharmaceutical companies or any other company.

    Mr. DURBIN. That is what the bill of the Senator does.

    Mr. ENSIGN. No. What I am here to say is we have a problem with our health care system today and we need to fix it. If we can go forward with this bill, if there are amendments the Senator thinks can improve this bill, let's at least move to it so that we can amend it, put the amendments forward, and have a healthy debate. We can take a week, or whatever it takes, to do that so that we can go forward and try to fix some of the glaring problems. If the Senator thinks there are some problems with the bill, let's bring forth amendments and try to fix it.

    Mr. DURBIN. If the Senator will yield for another question, I am curious. What the Senator has just suggested is a good basis for establishing what we might even call a Senate committee where we could have Members of the Senate come together, consider evidence, and offer amendments before the bill comes to the floor. If I am not mistaken, the Senate bill already provides for committees. Why is it that this bill, of such consequence, should not go through a Senate committee system so that the very aspects that we have just discussed can be openly debated and amended and come up with a work product that might be of real value to this country?

    Mr. ENSIGN. I say to my friend and colleague that it is obvious why. We could not get a bill to the floor. The Senator knows that and everybody here knows that. It is just like last year when the Senator was in the majority, there were at least two bills that I remember, the Energy bill, as, well as the prescription drug bill, that were brought to the floor that were not brought through committee. They were brought directly to the floor by the majority leader at the time. It is not a common procedure, but it is a procedure that has to be done every once in a while to bring up important legislation that cannot go through committee and my colleagues know cannot get through committee.

    The way the Senate works is so different than the House, and the Senator knows that. We both served in the House of Representatives. The House of Representatives does almost all their work in the committee. We can do a lot of our work on the floor and produce a pretty darn good product by bringing it to the floor, amending the bill on the floor, and that is what I think we should do.

    Mr. DURBIN. If I could ask the Senator from Nevada, the sponsor of this legislation, another question, he has spoken about his own home State of Nevada and the problems they have faced. In the last 2 days, there has been a lot of discussion on the Senate floor about the medical malpractice crisis in this country that involves an increasing incidence of medical malpractice. In fact, the Bush administration says it has reached epidemic proportions.

    I ask the Senator from Nevada, what in his bill, S. 11, would deal with the problem in his home State of Nevada, reported by Business Week on March 3 of this year, in which they reported that in his home State of Nevada, which adopted a $350,000 cap on recovery last year, it was discovered that two doctors in his State were responsible for $14 million of the $22 million in claims awarded in Nevada in 1 year? What in this legislation would make certain that those doctors, guilty of malpractice, would be held accountable for their wrongdoing and would be removed from practice if, in fact, they are not meeting the standards of professional conduct?

    Mr. ENSIGN. Mr. President, I say to my colleague that it is a great point. I practiced veterinary medicine and I understand how professional boards work. I understand that with professional boards there is a self-policing that is assumed. It is supposed to happen with lawyers. It is supposed to happen with accountants. It is supposed to happen with veterinarians. It is supposed to happen with physicians. The big problem today with professional boards is they are afraid to do something with somebody's license because if they do, they can be held personally liable. That happens time and time again.

    All of the professional boards go through this; that as badly as they would love to jerk somebody's license, unless it is so clear and the evidence is so outrageous of what they have done to deserve their license being jerked, it just does not happen. Frankly, it should happen more. There are incompetent doctors. There are incompetent lawyers. There are incompetent veterinarians. More of them should have their license jerked in that case, and I wish they were empowered a little more and maybe protected a little more to do that.

    Mr. SESSIONS. Will the Senator from Nevada yield for a question?

    Mr. ENSIGN. I am happy to yield for a question.

    Mr. SESSIONS. I say to Dr. Ensign, we appreciate his leadership on this matter and know that he is a professional himself, and he is familiar with these liability issues. The Senator talked about two doctors in Nevada being responsible for $14 million of the $22 million in punitive damages. I guess what I want to ask the Senator is that in this way we operate with punitive damages, is not the real truth that when two doctors get hit with big verdicts that the premiums from all the innocent doctors in Nevada go up? It is not just the bad doctor who pays—it is supposed to punish him—but the insurance company pays it, does it not, and then they pay for that by raising the premiums on everybody else?

    Mr. ENSIGN. The Senator from Alabama brings up a very true point, but also the Senator from Illinois is correct in that we do need to do a better job of policing the physicians. They need to do a much better job of that. That is why I brought up the point of the boards. The point is, though, if we vote for cloture tomorrow, maybe we can work this out. Maybe we can come up with something that could be addressed, or at least give suggestive language to the States to be able to work this out. It is so clear that if we can invoke cloture—for the general public, that means that we can proceed to the bill. The vote tomorrow is just whether we can proceed to the bill. All of this is just pre-debate on whether we are going to proceed to a bill that is so critical to the future health care in this country.

    Mr. SESSIONS. The Senator is exactly correct. I certainly agree, as a Federal prosecutor—and I prosecuted some physicians and other professionals in the medical business for bad behavior, but the odd thing about the way our tort system works, people think the doctor who gets sued is being punished, but really the doctor has insurance which he is required to have in order to practice in a hospital—virtually everybody has to have some, no matter how much it costs—and they do not end up being punished. Every physician in the community is punished, are they not? Is that not an odd thing that we are dealing with in current law?

    Mr. ENSIGN. I do not know if the Senator can see this chart—maybe we can have that chart turned just slightly so the Senator from Alabama can see it, but it brings up the exact point. The States that have capped noneconomic damages in the white, California and Colorado, represented by Los Angeles and Denver, in those States let's go down to the OB/GYNs, $54,000 in Los Angeles for the annual premiums for the medical liability insurance, $30,000 in Denver. Go over to New York; it is almost $90,000; in Las Vegas, $108,000. I guarantee that number in Las Vegas is old because friends of mine who are OB/GYNs say they are paying anywhere from $130,000 to $150,000 a year. Chicago, $102,000 and Miami is over $200,000 a year. The cities in gray, representing the states in gray, have no tort reform that has been on the books. Nevada has it but it has not been on the books long enough. It will take 6, 8, 10 years. Los Angeles and Denver have had their laws on the books long enough to work.

    Because they have enacted what we want to do today, we see these premiums.

    I yield the floor.

    The PRESIDING OFFICER (Mr. TALENT.) The Senator from Alabama.

    Mr. SESSIONS. I will share my thoughts. I believe this bill is a good way to go about at the present time dealing with what is a health care crisis in America—the surging costs of insurance and liability. I wish we were not in the Senate having to deal with it. I have some great friends in the tort business, good lawyers, and they have learned over the years how to utilize the system to maximize verdicts and maximize recoveries. They have been successful.

    Things have gotten out of sync. They need to be brought into sync. We can do it a number of different ways. We can do it State by State. The truth is over half of the medical care in hospitals in America today, and a very large percentage of what doctors do every day, is paid for by the Federal Government in Medicaid. It is our tax money. We are paying it. Part of the need they have for higher pay and higher reimbursement rates is because of the malpractice insurance they must pay.

    Caps on damages have worked. Last week I was in the small town of Russellville in Alabama where I practiced law for a year or so. It is pretty far off the beaten path. A bright young doctor gave me a couple of ideas about reforming medical care unrelated to this issue. He told me he had come from California. His premiums in Alabama were substantially higher, and growing each year, than his colleagues he left in California. He did not expect that. We have little or no caps. We have some caps in Alabama, but not the kind in California.

    I talked to a physician friend of mine, a wonderful person I go to church with, Dr. Conrad Pierce, former president of the OB/GYN Association. And he talked about the $100,000 liability premiums that OBs pay. He said, Jeff, you can get by in a city if you are delivering a couple hundred babies a year, but if you deliver 50 or 100 babies, this is $1,000 per delivery. It represents your health care premium. That is a big deal.

    Mr. ENSIGN. If the Senator will yield, is the Senator aware that, for instance, in Las Vegas, they are limiting the number of babies they are allowed to deliver to 125. What your friend was talking about is right, they used to deliver 250 to 300. Now they limit how many they can deliver.

    Mr. SESSIONS. That is the result we are dealing with. All kinds of factors are occurring that are impacting adversely health care as a result of the premiums.

    As my friend pointed out, in some rural areas you only deliver 50 or 60. It is not precisely how many babies delivered by a doctor that determines the premiums paid. You pay a basic premium if you deliver any at all. So the low numbers drive out physicians in rural areas who do not deliver that many babies.

    It is a big deal. We have seen medical malpractice insurance jump by 81 percent over the past 2 years alone. It has driven people out of business.

    The Physicians Insurance Association of America shows a fourfold increase from the period of 1991 to 2002 in the percentage of jury awards that exceed $1 million. We have a fourfold increase in the percentage of jury awards that exceed $1 million. Some say the reason these premiums have gone up is because insurance reserves are not producing the returns they used to produce. I don't think it is disputed that we have a substantial increase in the large verdicts around the country. That does drive the market.

    In West Virginia, Charleston Area Medical Center lost its Level I Trauma Center status, leaving West Virginia University Ruby Memorial Hospital as the only Level I Trauma Center in the State. The inability of this facility to find neurosurgeons and orthopedists created a situation in which critically injured patients had to be medevac'ed out of the State.

    Open the newspaper and you will read of similar crises in Pennsylvania, Nevada, Mississippi, and other areas. Rural areas are hit hardest by the increasing costs. This places additional burdens on those who can least afford it.

    In my home State, I was in the town of Atmore, not too far from where I grew up. The Atmore Community Hospital was forced to close its obstetrics unit because it could not afford the 282 percent increase in malpractice insurance from $23,000 to $88,000. When you deliver a limited number of children, $88,000 is a substantial cost against you. Now expectant mothers must travel either to the hospital in Brewton, 30 miles away, or to Mobile or Pensacola, FL, an hour away, eliminating availability of health care.

    Another rising crisis in my State has been brought to my attention involving the nursing home industry. It was a stunning statistic. At the request of the American Health Care Association, Aon Risk Consultants conducted an actuarial analysis that found there was a substantial increase in premiums, an extraordinary increase from 1995 to 2002 for nursing homes, meaning that the cost for settling and defending malpractice claims increased from $320 a bed in a nursing home to $4,410 per bed, over a tenfold increase in the insurance premiums paid. This was first brought to my attention by an individual I know in my hometown of Mobile who shared those numbers with me. It is consistent with his personal experience. I was shocked. We are looking at $4,000 per-bed cost annually for liability insurance per nursing home bed. That is very significant.

    I hope as we go forward we can move beyond obstruction and a filibuster to be able to offer amendments, if people think they can make it better, that we can do things that would be realistic and effective. I think we can do that. This bill has a good core right now. I intend to support it and I intend to vote for it and I intend to vote to move it up for debate.

    The odd thing about malpractice in America today and the lawsuits that get filed are, as I suggested to my able friend from Nevada, Senator Ensign, we think we are punishing doctors who make a mistake and we sue them for punitive damages. This historically was not a big part of litigation in America, but in the last 20 or 30 years punitive damages have become a staple in litigation. If a doctor makes a mistake, they sue him for the mistake, they sue him for the compensation, damages, pain and suffering of the patient, and they invariably add it was done recklessly, wantonly, or without due regard of care and that he is, therefore, responsible for punitive damages. Those punitive damages are added on to it as a punishment to that doctor. But already the doctor in the basic recovery is above the deductible he had on his insurance policy. He has already paid that out of his pocket. So whether it is $1 million or $10 million or $500,000 in punitive damages, that is paid for by the insurance system that we set up. And who pays into that insurance system? All the doctors in the community.

    I absolutely agree with Senator Ensign that we need tighter controls on physicians by the medical associations, just as I believe—and have believed for a long time—we need tighter controls by the legal professional community, of which I have been a part. We do not do enough there.

    But, regardless of that, you are still going to have negligence. You are still going to have these kinds of recoveries. If not capped, they continue to shift the payment from the person who did wrong to the innocent doctors and physicians out there who will all see their premiums increase substantially.

    I have visited hospitals in my State on a regular basis. I visited probably 30 hospitals in the last 3 or 4 years. I ask them about how their liability insurance premiums are doing. They tell me they tripled in the last several years, invariably—more than double consistently, they tell me, over the last 3 or 4 years. Each one is somewhat different but the premiums have gone up at an extraordinary rate.

    I think this Congress, faced with a demand for improving health care and health care delivery to more people, and at the same time trying to do so with contained cost, ought to look at one aspect of the medical system that produces little or no benefit and that is the amount of money paid out through this system.

    Yes, I do believe that lawsuits make some physicians more careful. I do think it has led to the altering of practices for better health care. I do not believe all lawsuits are bad. I do not believe all recoveries are bad. I think it is good sometimes if physicians get hit and popped and sent a message. I think the embarrassment of the lawsuit itself has a substantial impact on this physician and other physicians in the community. But whether the recovery is $500,000 in punitive damages, $250,000 or $2 million is not the point. That physician is not really going to be paying it. The other physicians in the community will be paying it.

    I think we will get the same impact in terms of improving health care if we allow lawsuits to go forward but we don't allow them to turn into jackpot justice where one patient, one victim, one injured patient who sues gets $10 million and another one gets $500,000 or zero for virtually the same circumstance. Too often that has happened. This is not a systematic way we are dealing with malpractice in America. And who is paying for it? John Q. Citizen, the Federal Government, in terms of Medicare and Medicaid moneys we send out.

    I think we can do better. I think this bill is a step in the right direction. My friend from Illinois is a skilled lawyer. There is no doubt in my mind his remarks on this bill will represent the best comments that can be made in opposition to it. But overall I think it is a net plus. It is the right step to take. We are going to need to do something about these costs. I do not believe the benefits in improved health care are anything like the costs that are being incurred by physicians. They do not consider the amount of care being denied American citizens as a result of physicians choosing another course.

    Finally, I read in the newspaper about Dr. Sumpter Blackman from Camden, AL, a small town I grew up in of not much more than 1,000 people with a small hospital with about 20-some-odd beds. Dr. Blackman is the main physician there.

    It was reported that he may have to give up his practice; that he could not get insurance. One of the companies had changed and he was not able to get other insurance. The rates were extraordinarily high. He was wondering whether or not he should stay in the business.

    I could say to the Members of this Senate, with no doubt, if you took a poll of the people in Camden, AL, and the environs and asked who was the most important person in that community to them, Dr. Sumpter Blackman would win that hands down.

    He was my mother's physician. He takes care of people there. He knows them. He is an excellent physician. He is talking about retiring early as a result of lawsuits. I think this has gone beyond just talk and debate and big insurance companies and rich companies and poor victims and doctors. I think it is a health care issue. We cannot afford to lose people such as Dr. Sumpter Blackman from the medical profession. He has saved the lives of thousands in his long career there in Camden, AL, and there are a lot more like him. They are thinking maybe this business just isn't worth it; I put aside some money and maybe I will just go off somewhere and do something else and not have to worry about this and worry about getting insurance.

    I yield the floor.

    The PRESIDING OFFICER. The Senator from Illinois.

    Mr. DURBIN. Mr. President, I thank the Senator from Alabama for his kind words. He and I disagree on many issues but respect one another very much. I am sure there will be an issue somewhere along the way on which we agree. We are both waiting, and after 6 or 7 years the day may come. We will announce it.

    Mr. SESSIONS. If the Senator will yield, I think we do agree we need to work to improve our legal system to make it the best we possibly can. How do we do that? Sometimes we disagree but I respect the Senator from Illinois and his skill.

    Mr. DURBIN. I consider that a rhetorical question but I respect the Senator from Alabama.

    Let me say there was a statement made earlier by the sponsor of this legislation that tells the whole story. When he came to illustrate the savings in malpractice premiums from States with caps and States without caps, he said to us, I think the Congressional Record will reflect what I am about to say is accurate, that the reason he only chose Los Angeles and Denver to illustrate that States with caps lower malpractice premiums was because it takes a long period of time for the caps to be reflected in the premiums charged to doctors. In his words, he said 8 to 12 to 15 years before premiums come down.

    I think perhaps he may be right. Perhaps he may not be right. Over a period of 8 to 15 years it is hard to measure what is going to have an impact on malpractice premiums. It could be the investment success of the insurance company as much as a cap or any other thing. But it tells an important part of the story. If we are facing a medical malpractice insurance crisis today in America, what is being proposed, limiting the recovery of medical malpractice victims, putting a cap on the amount of money they can take home from a lawsuit, is, in fact, not going to provide relief to doctors or hospitals facing these high premiums today. In fact, it may be 8, 10, 12, or 15 years, according to Senator Ensign, the sponsor of this legislation. I think that should give pause to every Senator who believes they can vote for this legislation, see it enacted, go home to doctors in their community and say we have met our obligation. I do not think that is a fact.

    There is another side of the story here that is worth at least pointing to. When I asked the Senator from Nevada why he included more than just doctors in this bill, more than just hospitals in this bill, why did he go on to include health care organizations such as insurance companies, HMOs, managed care organizations, why did he include pharmaceutical companies, medical device manufacturers, nursing homes, why are all of them being brought into the debate if our concern is whether or not there will be enough doctors around to deliver babies, he basically said we are trying to reduce the cost to the health care system. I assume if you limited recovery to zero dollars, you could reduce it even more. This bill limits it to $250,000 in noneconomic losses. He gave an illustration of the fact that economic losses include lost wages. Then he went on to say that if a child were injured and would be unable to be employed, for example for the rest of his life, they would have to try to make some calculation as to the lost wages.

    I might remind my friend from Nevada that his bill requires objective verifiable losses. How do you calculate that for a 6-year-old boy, such as the one I talked about yesterday, who will literally have no work life, no work experience the rest of his life on Earth? How do you calculate that in objective verifiable ways, as to his future lost wages?

    The importance of that, of course, is that is only one of two things he can be compensated for—medical losses as well as loss of income. So the calculation is very difficult under the exact language of the bill written by the Senator from Nevada.

    I take exception to a comment made during the course of this debate by my friend from Alabama. He has made this comment before. He referred to what he called "jackpot justice." He referred to verdicts that really are of little or no benefit, as he said, to society.

    I suggest to him that we have statistics. Virtually both sides inundated the record with statistics. But these come from the National Association of Insurance Commissioners. Here is what they tell us.

    The number of new medical malpractice claims declined by 4 percent between 1995 and 2000. During that 5-year period of time, new medical malpractice claims declined by 4 percent.

    If we were talking about a proliferation of claims or lawsuits, the record suggests it is not the number. But, of course, some will argue how much is being awarded to those that are being filed. I would concede that the general awards have gone up. It reflects a number of things. It reflects inflation in medical care, and the cost of medical care. Everybody knows that is a fact. The cost of prescription drugs, the cost of doctors' care, and the costs of hospitals have all gone up. That is reflected when a verdict or an award is given to someone who has been injured. You would expect under normal circumstances for a person who is aggrieved or injured by medical malpractice on a year-to-year basis to see that award going up, understandably so. But how about the big awards, ones over $1 million?

    According to Business Week, and their March 3, 2003, issue, which I quoted earlier—Business Week is hardly a liberal publication—in 2001 there were only 895 out of 16,676 payouts exceeding $1 million, about 1 percent. That is up from 506 in 1996.

    In a 5-year period of time, the number of awards over $1 million went from 506 to 895.

    From the debate on the floor you would conclude that the number was much larger.

    I take exception especially to a reference to these awards and settlements in larger numbers as "jackpot justice."

    I will not bring out the photographs. But earlier I mentioned some of the people who have been victims of medical malpractice.

    Heather Lewinsky of Pittsburgh, PA, a 17-year-old who has gone through a series of plastic surgeries and will be deformed and scarred for the rest of her life by medical malpractice—would a verdict in her case be a jackpot? I don't think so.

    Evelyn Babb, a 75-year-old woman from Tyler, TX, went in for a simple knee surgery and the surgeon operated on the wrong knee. As a result, this 75-year-old lady lost her mobility and will be suffering with pain for the rest of her natural life. Would a verdict in her case be "jackpot justice"?

    Sherry Keller from Conyers, GA, a graphic case which I talked about earlier, a lady who went into her doctor's office after a hysterectomy and had a terrible situation where her womb was reopened because of bleeding and she went into shock—the doctor left her alone in the room, she fell off the examination table striking her head as she fell to the floor, eventually leading to a situation of being a quadriplegic. If she received an award, this mother and homemaker, of $500,000, has she hit the jackpot?

    I don't think so.

    Colin Gouley from Nebraska came with his family to see us today. This little 9-year-old boy, whose life has been compromised dramatically, will have a difficult time doing things we pray that every child can do, such as read, write, engage in conversation, walk, and run. He will never have that chance. A jury in Nebraska thought that his damages from malpractice committed against him was worth more than $5 million. So did Colin Gouley hit the jackpot with a $5 million verdict if he has a lifetime of being in a wheelchair because of medical malpractice? Is this "jackpot justice"?

    Kim Jones, 30 years old, went in for a simple tubal ligation and ended up in a comatose state in a nursing home for the rest of her life. Is an award in her case a jackpot? Did she hit it big if they gave her enough money for someone to care for her the rest of her life? Frankly, she will never be able to care for her daughter again.

    Or Alan Cronin, 42 years of age, who went into a hospital in California for a routine hernia surgery and ended up with an infection so serious that it lead to gangrene in all of his limbs and amputation of both arms and legs—Alan Cronin, would he be the winner of a jackpot if those who were responsible for his losing his arms and his legs had to pay and compensate him not only for his medical bills and lost wages but also for his pain and suffering?

    That is the part of the calculation which those who bring the bill to the floor have not spoken of. They talked about the challenges facing doctors. We conceded that. In some areas of the country, malpractice insurance is too high. Don't overlook what this bill does. It closes the door and removes the jury from the decision about fair compensation for people who have been injured through no fault of their own.

    That is why I think those who are pushing this bill will probably be unsuccessful tomorrow. People on this side of the aisle, and Republicans as well, believe this bill, S. 11, goes too far. This is excessive. This is not setting out to simply solve the problem. This is setting out to make a political point—that we are going to go after those who would be so bold as to file a lawsuit.

    In the pages of this bill, you will see a limitation on what attorneys can be paid if they represent one of these clients or one of these patients I have mentioned—people who have lost their limbs, people who are no longer able to function as normal human beings. If they go to hire a lawyer to represent them in a case of malpractice, this law will restrict how much their lawyer can be paid.

    If you believe in justice, wouldn't you also argue that those who defend the doctors and defend the hospitals should have their attorney's fees limited as well? Wouldn't that be fair? Isn't that justice with a blindfold? No. The blindfold is raised on one side. It is a wink and a nod to the defense industry representing the doctors and the hospitals. But when it comes to these poor people with limited economic resources fighting for compensation for injuries that are no fault of their own, this bill limits the amount of money that can be paid to those lawyers.

    I will tell you that without the contingency fee system, most of these poor people I have described today will never ever have their day in court. No attorney will be able to represent them.

    Do you recall not too many months ago that sad story in North Carolina, I believe at a major university, where there was supposed to be a heart-lung transplant and they mistakenly brought the wrong blood and tissue type organs to be transplanted and a mistake was made? It was clearly not the mistake of the family or the little girl who was involved. Discovering this error, they tried to implant an additional set of organs—heart and lung—to save her after this serious mistake was made.

    I can tell you that this little girl, who sadly died because of that malpractice, would have recovered little or nothing for that wrongful death under this legislation.

    Where do you point to in terms of lost wages for a little girl who died during the course of the surgery? Where is the pain and suffering in a wrongful death lawsuit? Yet that is what it comes down to.

    Those sponsors of this bill are prepared to close the courthouse door and say that for her family, they do not have the opportunity to get a lawyer because the contingency fee is limited, and once they have that lawyer there is little or nothing they can recover despite clear evidence of medical malpractice.

    That isn't fair. It isn't American. It isn't just. We are talking about rewarding people who have been seriously and egregiously injured.

    I hope my colleagues will join me tomorrow in voting against the motion for cloture. We should not proceed to this bill. This bill should proceed to a committee. It should go to a committee for a long period of study of compromise, of amendment, of a good-faith effort on both sides involving the medical profession, and the insurance industry which gets a windfall from this bill, as they do virtually every bill that comes through here, as well as the legal profession; and a bill that will end up in a resolution of the problems facing our doctors and medical providers whom we value very much, but I don't believe they would stand behind such a product that is so fundamentally unfair.

    I yield the floor and suggest the absence of a quorum.