Patients First Act of 2003 - Motion to Proceed

PATIENTS FIRST ACT OF 2003—MOTION TO PROCEED

Mrs. MURRAY. Mr. President, there is a health care crisis in this country. Millions of Americans have no health insurance. Insurance companies continue to increase their premiums and doctors and patients are the ones who are paying.

In my home State of Washington, our health care system is in trouble. Some doctors are closing their practices, retiring early, or moving to other States. We have a shortage of nurses and other medical professionals. And one in nine Washington State residents do not even have health insurance.

Doctors in my State are seeing their malpractice insurance premiums increase by 100 and even 200 percent. At the same time, Medicare, Medicaid, and private insurance companies are reducing their reimbursement amounts. These multiple forces have created a perfect storm for doctors and patients.

In some specialties, like OB GYN, the malpractice insurance market is out of control. Insurance companies keep jacking up their premiums. These insurance company increases are simply not sustainable.

I strongly support legislation to correct these problems and to get skyrocketing insurance premiums back under control. We must help to stabilize our health care system by making sure that doctors are not forced out of business by rising insurance rates.

Unfortunately, the proposal before us is not the answer. There are major flaws with both the process and the substance of the proposal.

First, this bill would preempt State patient rights laws, and give more protection to HMOs and insurance companies at the expense of real people who are hurt.

Second, caps on noneconomic malpractice awards have not been effective at reducing insurance rates in States where they have been tried; and

Third, this bill is being used as a political club, instead of a real attempt to find a meaningful solution.

I am deeply disappointed that some Senators would rather play political games with our Nation's health care instead of trying to find a real solution.

One problem is that this proposal preempts State patients' right laws and protects HMOs and insurance companies rather than doctors and patients.

For the past 3 days Senators have talked about the impact of the medical malpractice crisis on doctors and patients across the country. And those who have been following this debate might assume that this legislation would only provide
protection to doctors and hospitals. But this bill goes much further.

S. 11 also extends additional protections to nursing homes, HMOs, drug and medical device manufacturers.

Not only does S. 11 provide liability relief for these groups. In some cases it preempts State patient bills of rights laws and
protections—protections that patients and doctors have fought hard to achieve.

Since 1997, I have worked to secure passage of a Federal Patient's Bill of rights to protect patients and to ensure that insurance companies make decisions based on sound medicine, not profit margins.

Working with doctors and hospitals we have twice tried in the U.S. Senate to enact a comprehensive Patients' Bill of Rights, but were defeated by special interests. The foundation of any patients' bill of rights legislation is holding HMOs accountable for making medical decisions. Unfortunately, S. 11 would take us in the opposite direction.

Many States, like my home State of Washington, did not wait for Federal action to protect patients and doctors. In March 2000, Washington state enacted a strong Patients' Bill of Rights law that held HMOs and insurance companies accountable and liable for harm caused when insurance plans denied or delayed access to recommended health care services.

The State law also provides a 3-year statute of limitation from the completion of the independent external review process. But, S. 11 would preempt this law. It would impose a Federal noneconomic limitation of $250,000 and would reduce the state of limitation to 1 year.

This is the wrong approach. The Senate leadership is proposing to substitute the judgment of the Federal Government in Washington, DC for the judgment of the State legislature in Washing State. As insurance has historically been a State, not a Federal, issue, Congress must be careful about this Federal expansion.

The second problem with this proposal is that caps on malpractice awards do not necessarily reduce insurance rates.

I have heard my colleagues refer to California's experience as a model for Federal action, since California has enacted caps.
However, recent data shows that average actual premium rates in California are actually higher than States that have no such caps, according to the Medical Liability Monitor.

Across the country, States that have imposed caps on noneconomic damages, are now seeing similar increases in insurance premiums as those States without caps. If the goal is to help insurance companies with their profit margins, then this bill might help. But if the goal is to help doctors afford to pay for insurance, then this bill will not help.

Even if caps did force insurance companies to reduce their rates, are caps fair to patients who were harmed?

We know that as many as 90,000 people a year die from medical errors. Not all of these errors constitute malpractice, but limiting fair and just compensation for even a fraction of these individuals and their families is a major change in our judicial system—and a huge price to pay in the name of reform.

If this legislation had gone through the appropriate committee process, Congress might have gotten some answers to these questions, and the legislation before us might have been helped doctors and patients.

Unfortunately, this bill was brought forward for purely political reasons. This is the greatest tragedy of all for doctors and patients. Some colleagues would use this bill to help their follow partisans rather than the physicians who need it.

This bill did not go through the standard committee process. There were no public hearings to get expert testimony to help shape the legislation. There was no committee markup for the legislation for Senators to weigh in on the issue.

In fact, there are a number of reports indicating that malpractice claims are not necessarily responsible for higher insurance premiums. These reports suggest that it is not the growing number of cases or even the size awards that are driving premium increases, but rather the decline in the value of investments for insurance companies.

Without the opportunity to fully understand the problem—with hearings and markups-Congress cannot develop a real, workable solution.

Instead, some Republicans are exploiting this legislation, according to the Washington Post, "as an issue for next year's election."

In fact, even Republicans have acknowledged that this is not a serious proposal, but instead is a "political document."

A Republican Senator was quoted in the New York Times this morning discussing this bill. He said the Senate leadership is "bringing this bill up to get most of my Democratic friends to vote against it, a handful of Republicans to vote against it, and they're going to take it on the campaign trail."

This is outrageous. Patients are losing their doctors. Doctors are going out of business. And rather than address a critical problem, the Senate leadership is playing political games.

So what is the answer?

Clearly, the medical malpractice insurance rates doctors are facing are untenable. They are a real problem for doctors, for patients, and for our entire health care community. Every week, I hear from doctors throughout Washington State about the challenges that soaring malpractice insurance premiums are causing.

That is why I support the Durbin-Graham proposal to provide immediate relief to doctors.

When insurance markets are dysfunctional—as they certainly are in malpractice—the Federal Government has a tradition of providing needed support. We did that with flood insurance a few years ago, and we did it again with terrorism insurance in 2001. When an insurance market fails, there is certainly precedent for Federal corrective actions.

If we can provide relief for terrorism and flood insurance, we should be able to provide relief for high-risk, critical practices like trauma and OB GYN services.

While we need to examine every way that we might address this crisis, as I look at this idea, I am also realistic.

Noneconomic damages are not the only factor impacting insurance premiums. It is not clear to me that capping just noneconomic damages will really solve the problem. In addition, malpractice insurance is traditionally a state issue. If the Federal Government is going to insert itself so dramatically in a State matter, we need to be sure this approach is going to
work.

There are still too many unanswered questions to proceed with this bill. We know that the status quo is not sustainable,
but we need to recognize that this is a complicated problem and there can be no quick fixes.

It is time to stop playing politics and start working together to find solutions and heal our ailing system.