Senate Health, Education, Labor and Pensions Committee and Senate Judiciary Committee Hold Joint Hearing

Senate Health, Education, Labor and Pensions Committee and Senate Judiciary Committee Hold Joint Hearing on Role of Litigation in Patient Access to Care

DURBIN:

Thank you very much, Mr. Chairman, and thank you to the panel. I apologize for having stepped out to go to an Intelligence Committee hearing, but I did read your testimony before I left, and I'm sorry I couldn't be here as you presented it, but I am familiar with what you've said to the committee.

Unlike some of my colleagues here who have said that in the past, they have defended doctors, and others have sued doctors, I've done both. Before I was elected to Congress, I spent five years defending doctors in medical malpractice cases and two years on the other side, on the plaintiff's side. So I've seen, at least in my time a few years back, both sides of the equation.

Let me disabuse you from the notion immediately about frivolous lawsuits. If someone walked in my office and said they had a medical malpractice claim, I quickly calculated that I would be spending out of pocket thousands of dollars in preparation of that claim. I was not about to take a flyer and run the possibility of contempt for filing a case that made no sense at all and lose money in the process.

In my state and many others, you're going to file an affidavit with your complaint from another doctor saying you could have a claim, you could have a cause of action. There's a lot of work that goes into these cases, and people who file frivolous lawsuits should be dismissed, and I doubt that that is the source of the problem here today.

Let me also tell you that I've listened to this debate here about contingency fees, and, without fail, the people who came into my office when I was an attorney couldn't have had an attorney any other way. They couldn't afford to put up $10,000, $20,000, $30,000 of their own money after they'd gone through a devastating medical injury. They only could operate under a contingency fee, and different lawyers charge different percentages. But many of them run the risk of ending up with nothing when it's all over.

People have argued that this issue is all about doctors and trial lawyers and Americans who can't find medical care because medical malpractice premiums are driving doctors out of business. I think it's about all three of those, but I think it's about three other groups, too.

It's about doctors guilty of negligence and reckless misconduct; it's about Americans who are innocent victims of medical malpractice and face a lifetime of pain, suffering, and death; and it's about insurance companies who have somehow escaped the scrutiny of the White House and many members of Congress when it comes to this medical malpractice crisis. These same groups that now argue we shouldn't look at insurance companies as part of the problem also said we should absolve HMOs from liability when they make the wrong decisions as to whether or not you can even qualify for medical care.

I don't think that that is consistent with this theory of accountability which we hear so often in Washington, D.C. All of us are held accountable. We should be held accountable in a reasonable way.

I'd like to ask Dr. Wilbourne, if I could—you had a personal life experience that clearly demonstrates the problem, where you had to pick up and move from a practice in Nevada to Maine under these circumstances. Now, you know that since you left—I don't know how long it's been since you left Nevada—but they've passed a medical malpractice law. Are you aware of the fact that the malpractice insurance companies have said they're not going to reduce premiums even with the caps?

WILBOURNE:

Yes, sir, I'm aware of that. That special session was called while I was actually meeting with President Bush in High Point. The special session went into effect and the law was passed after I had closed my practice July 31st but prior to my physically leaving town, as I was trying to put my house on the market.

I was aware that those rates would not go down. We had been told by our liability writers that, number one, don't expect a decrease in rates until a case test has gone through and the Supreme Court has upheld it, and, number two, enough exceptions were put into the bill that was passed in Nevada that left enough legal loopholes that they really didn't find it was going to help them at all.

DURBIN:

If you look at the states that have imposed caps—I know they've probably gone over this ground and I won't repeat it. The states that have imposed caps on recovery and lawsuits for people who are injured and die—those caps really haven't resulted in significant differences in malpractice premiums in these states.

So what we're doing is limiting the day in court for the person who's a victim and not achieving the goal that we're seeking, which is affordable medical malpractice insurance so doctors can practice medicine. I just can't understand why this administration won't consider looking at insurance companies. Why is it that they can't be part of the solution here?

Let me ask this of the people on the panel here. You've probably heard of cases, and there's probably been some describe here today—do you feel that $250,000 is fair compensation for some of these cases you've heard of? A case that I had involved a little baby brought in for baby shots, which every parent does without a second thought, who, within days, was a quadriplegic, unresponsive, because the doctor failed to note that this baby was suffering from a fever and a problem that made a—and a reaction to pertussis (ph), the whooping cough vaccine at the time. Think about that child living five years, 10 years, in that state -- $250,000. Is that enough compensation for the pain and suffering of that child and the family associated with him?

Do you all feel that $250,000 is adequate or generous under those circumstances or the circumstances described by Ms. McDougal? I ask my friends in the insurance industry.

UNKNOWN:

Senator, I don't know if there's any amount that could make a severely injured patient whole. And whether the amount is $250,000 or some other reasonable number, we've reached the point in time where the excessive awards of non-economic damages have driven malpractice insurance rates to the point where doctors simply can't practice medicine anymore. If we're going to draw the line at some point, we know that $250,000, which is, in effect, in California today and in Colorado today and in Kansas today and a few other states, works and has kept their premiums down and their doctors practicing in those states.

DURBIN:

I know Senator Dodd suggested this, that you start looking at individuals, rating them. People with a bad driving record pay more for auto insurance. We know that 54 percent of the claims are filed against 5 percent of the doctors. It seems to me that those are the target doctors who should be paying higher medical malpractice premiums, unlike Dr. Wilbourne, who, I guess, had no experience with medical malpractice liability before his premiums went through the roof.

I also have heard suggestions that states—in kind of a cross- subsidy, where they'd say that there would be a certain small amount taken from all specialties to provide some subsidy to those that are higher risk specialties but a necessary part of medical practice. It seems to me that unless we are willing to honestly talk about the insurance industry and your practices, this is really an exercise in bashing away at trial lawyers rather than getting to the heart of the problem.

SMARR (?):

I'm glad you brought up the topic of experience rating for doctors, and such does exist. In my own experience in working in the market in Pennsylvania, the market leader carrier in Pennsylvania has an experience rating program. And yesterday, in House testimony, in Bucks County, Pennsylvania, the president of that company explained what they were doing.

Essentially, they have a 15 percent discounted premium for physicians that are claim free for a certain period of time. They also have a 5 percent risk management discount for doctors that participate in risk management programs, and they have a consent-to- rate program, which is a special mechanism for insurers that have very adverse loss experience, where they are asked to consent to a rate that is very much higher than normal (OFF-MIKE) rate, and that is filed with the state insurance department. I think that programs like this are in effect with insurance carriers, the doctor (OFF-MIKE) carriers I represent, at least, in states across the nation.

DURBIN:

I think that's a reasonable alternative.

Thank you, Mr. Chairman.