Healthy Mothers and Healthy Babies Access to Care Act of 2003-Motion to Proceed

HEALTHY MOTHERS AND HEALTHY BABIES ACCESS TO CARE ACT OF 2003-MOTION TO PROCEED

Mr. CORNYN. Mr. President, I ask unanimous consent to be added as a cosponsor of the Healthy Mothers and Healthy Babies Access to Care Act of 2003.

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

Mr. CORNYN. Mr. President, I am happy the majority leader has seen fit to bring this important issue to the floor. I will have some specific comments about the bill in just a moment.

I believe our civil justice system is badly broken insofar as it serves the interests of the few at the expense of the many. What I mean by that is our system of resolving civil disputes, whether they be medical malpractice lawsuits, or automobile accident cases, or any other kind of ordinary bread-and-butter lawsuit you see decided in courthouses across this country, in which citizens volunteer to give up a substantial amount of their time, that this process takes too long and it is too expensive to serve the interests of justice. It discourages those who have meritorious claims from even bringing those claims because they don't want to endure the time or expense. It too often benefits the very few at the expense of the rest of the public.

Particularly, the benefit is to a handful of lawyers. I must say, I am proud to be a lawyer. I practiced law a long time before I was a judge presiding over a trial court in San Antonio, TX, for 6 years and serving on the Texas Supreme Court for 7 years. I am proud to be a lawyer.

The problem is we have a handful of lawyers who are literally the tail wagging the dog on this and other reform issues that are so important to restoring public confidence in our civil justice system and making sure that rather than serving the interests of the few, the interests of the general public are served by the way in which we handle disputes like medical liability cases and other tort litigation.

We have in this country what some have called the "sporting theory" of justice. We have an adversary system, where each side retains a champion and we go in and we have a clash between these adversaries in court, and the theory is-and in many respects it works well-the impartial jury decides the facts and the judge applies the law, and then we have a judgment in the dispute. It is a way of resolving our disputes without violence, in a way that seems to satisfy the public generally. But the problem is in modern-day litigation-and nowhere is this more prevalent than in the area of medical liability litigation-the interest of the person who is harmed is not truly paramount in consideration in terms of the way the system works. In fact, many times, it is the patient who may be injured or harmed who receives actually less money than the lawyer who brings the lawsuit.

As you know, many of these lawsuits are handled on a contingency fee basis. In other words, the lawyer who brings the lawsuit will represent a client in court-a patient in this instance-and say, well, if I represent you, then I will take 50 percent of everything you recover. It won't cost you a penny if I don't recover anything, but if I do, I will recover 50 cents off the top of every dollar you recover. Of course, there are other expenses associated with this kind of lawsuit, such as the hiring of expert witnesses, court costs, and the like.

Too often, what happens in these cases is the lawyer ends up the one walking out of the courtroom with the most money, not the injured party, not the person for whose benefit a lawsuit is brought. To me, that simply turns our civil justice system on its ear. It calls into question whether this is a system of resolving disputes in a way that serves the interests of the public; or does it, as it appears too often, serve the interests of a handful of personal injury lawyers who make their living bringing this kind of lawsuit.

There is another aspect of this as well. In our civil justice system, we know almost anybody can file a lawsuit for virtually anything. If you can get a lawyer to file a lawsuit, then you can sue someone for a small fee, whereby the clerk will serve the papers on the defendant, and typically the defendant will have to hire a lawyer to represent them. At this point, there is no determination made that there is any merit to that lawsuit. Well, what happens too often is the very nature of being able to file that lawsuit without any determination if there is any merit at all leads to a form of legalized extortion, because the person who has been sued has no recourse but to hire someone to defend them. Even if they end up winning the lawsuit, even if the lawsuit filed is dismissed ultimately, there is no recourse for that defendant who has been wrongfully sued or sued in a frivolous lawsuit.

This, too, adds to the expense of ordinary litigation and makes very little sense to me or, I think, to a lot of people. I think the more the public understands who it is who benefits from the current state of our civil justice system, our tort system, our medical liability system, the more the people will understand it is not them, not the injured patients, not those whom the system is designed to benefit; it is for those who filed the lawsuits, the lawyers who represent those folks.
Unfortunately, because of the costs associated with just the expense of litigation, we know too often those persons who are sued will make what is known in the profession as a nuisance settlement. In other words, they will say, well, it is going to cost me tens of thousands of dollars just to defend myself against a frivolous lawsuit. Rather than defend myself and win the lawsuit, but end up $100,000 out of pocket, or whatever the cost may be, I will pay you $5,000 or $10,000 to simply have it go away.

Unfortunately, you can see why the financial incentives tend to favor nuisance settlements of lawsuits which, unfortunately, have the unintended impact of encouraging further litigation and other lawsuits even when they are frivolous. We need to do something about it. I join the senior Senator from New Hampshire who said we need some meaningful medical liability reform. We need to make sure that it is not the lawyers who bring these lawsuits who benefit but, indeed, the public. Nowhere is this a greater concern than when it comes to access to health care and medical liability lawsuits.

Last fall, I spoke in this Chamber, along with others, in support of broad-based medical liability reform. Today I rise to speak in favor of this narrow, but very important, bill that deals with women's access to physicians who will deliver their babies, access which has been damaged terribly by the current dysfunctional way in which we resolve disputes about medical liability.

The change we argued for last fall and this change as well would drastically reduce the cost of health care by reducing frivolous claims and eliminating the need to pay extraordinary amounts of money for medical liability insurance.

Unfortunately, we failed to pass meaningful reform. We have heard-I heard the Senator from Vermont mention this a moment ago-that the real culprit in all this is the insurance companies; it is not the lawyers who benefit disproportionately from the status quo; we know it is not the patients who do not benefit very often; and we know people who seek access to health care are denied access to that health care because of this dysfunctional system. The Senator said it is the insurance companies.

I take second chair to no one in saying that if, in fact, he can point to abuses perpetrated by insurance companies or anyone else, we certainly ought to take up that issue. But I believe the motivation is really one to create a diversionary tactic, a smokescreen, if you will, to say it is not the lawyers, it is not us, Heaven forbid, it is not the women who want their babies delivered, it is the insurance companies. We have heard this time and time again when, in fact, I believe the empirical evidence that has been produced in my State and other States shows that, in the end, insurance companies, which are typically subject to strict State regulations, are having to play a lottery game, a sort of game of roulette. They don't know what the rules are because they change with every million-dollar, multimillion-dollar, tens-of-million-dollar judgments in lawsuits. So they charge an insurance premium, just like we pay for homeowners insurance or renter's insurance or any other kind of insurance, and ultimately that cost is passed on to the consumer. In this case, the consumer of that insurance, the one who pays that premium, is the physician who wants to practice medicine, who wants to dedicate their life to the interests of people who are sick and who need their help-in this case, mothers who need access to good baby doctors so they know the baby they have carried for all these months will be delivered safely and will be healthy.

The good news I guess, if we can find any good news in this sordid situation in which we find ourselves, where these lawyers who benefit from the status quo are the ones who are calling out the tune and having others dance to the tune they have called out, is that some of the States are stepping up; they are not waiting on a solution from Washington, DC, and that is a good thing.

As someone who believes that local government and State government tends to be more responsive because it is closer to the people they serve, than for the Federal Government, I think it is good that the States are stepping up, but this is not strictly a State problem.

When we consider how much money we appropriate each year-we just passed a $400 billion Medicare bill which is now estimated to cost more than $100 billion more than that over 10 years-when you think about Medicare, when you think about Medicaid, when you think about S-CHIPS, the Federal taxpayer-in other words, everyone who earns a wage in the United States-subsidizes this broken medical liability system because much of the costs associated with health care today are due to either counting in what this rapidly increasing cost is in terms of determining what a fee for a service is or otherwise having to suffer the consequences when doctors simply pull up stakes and move out of their State, leaving mothers, in this case, who want a doctor to deliver their baby in the lurch.

In my own State, out of 254 counties, there are 154 counties in which a pregnant woman cannot find a specialist to deliver her baby. A large part of that cause is because of the cost of medical liability insurance which is simply priced out of the market, and physicians say I am going to retire early rather than subject my family and myself to putting at risk everything I have worked a lifetime to save and achieve or people who just simply have gotten tired of being in the crosshairs their whole life by a system that serves the interests of the few at the expense of the many. I think Senator Gregg had a chart that showed what I mentioned a moment ago behind, that out of the 254 counties in Texas, 154 have no obstetrician/gynecologist, no specialist in delivering babies. The yellow depicts those pregnant woman would have to drive to one of the white counties simply to find someone who will deliver her baby, and sometimes they don't make it. Sometimes the baby is damaged because complications ensue because there is no doctor close by who is qualified to deliver that baby because of this broken medical liability system.

I think it was Senator Frist or perhaps Senator Gregg had a chart that showed a chart of 19 States where there is a medical liability crisis because of this civil justice system, a system that is supposed to be a just system but is truly an unjust system. It is simply broken.

Each of these red States, including, we can see, the State of Texas, is listed as a State in crisis. Nineteen of them are where patients are losing access to baby doctors due to skyrocketing medical liability insurance premiums and where pregnant women are forced to drive long distances just to find a physician to deliver their baby.

As I mentioned a moment ago, the good news, if there is any good news in all this, is that the States are not necessarily waiting on the Federal Government. In my own State, just this last year, the voters passed a constitutional amendment, proposition 12, which would provide some of the relief that is sought to be delivered to the entire Nation in this particular bill. We have already seen some very beneficial effects of this constitutional amendment and the legislation that implements it because we have seen medical liability insurance companies offer to reduce their premiums by 12 percent or 19 percent in another case.

So we are beginning to see some real impact of the predictability and the commonsense reforms that I believe are designed into this important bill. Because the American taxpayer pays to support the Medicaid system, pays to provide indigent health care, pays to provide other types of medical care, this is truly not just a State problem. This is a national problem, and I know many of my colleagues, myself included, are concerned when we hear those dreaded words from the Federal Government: We are from the Federal Government and we are here to help. Those are some of the most dreaded words in the English language because, indeed, the States and local government, I believe, tend to be much more responsive. This is truly not just a statewide problem in my State or any State. This is a national crisis that calls out for a national solution.

This is not something that affects only obstetricians or baby doctors. Indeed, this affects the ability of hospitals to do business in rural parts of our country, rural parts of my State. Emergency departments lose staff and scale back critical services such as trauma units. From 2002 to 2003, we saw a 56.2 percent average premium increase faced by emergency room physicians and the hospitals in which they practice. One-third of the Nation's hospitals saw 100 percent or more increases in liability insurance premiums in 2002. We may think this does not really concern me, this is the hospital owned by a corporation, or this is a doctor's problem, somebody who drives a big shiny car, who makes a lot of money. But this is not about helping doctors or helping the corporations that own hospitals. Many of them are owned by nonprofit associations and are charitable organizations that keep their doors open because they believe in their mission. This is ultimately about access to health care.

I have heard some of my colleagues on the other side suggest that because of the booming number of uninsured in this country, estimated to be at any snapshot in time as many as 43 million people, we need universal, federally funded health care in this country. We know, because the Joint Economic Committee has told us so, that 3.9 million uninsured Americans would be able to receive health insurance if Congress were to pass commonsense medical liability reforms. Almost 4 million currently uninsured individuals would be able to receive health insurance if Congress were to pass commonsense medical liability reforms.

This is not just an isolated matter. This does not just affect doctors who are fortunate by virtue of their training and that expertise to earn significant incomes. This is not just about big hospitals with shiny buildings owned by corporations. This ultimately comes down to the individual who wants what we all want, and that is access to good quality health care, but who simply cannot find it because they either cannot afford the health insurance or their employer has been priced out of the market because of booming health insurance premiums, in large part caused by this liability crisis or, as we have seen, simply the doctors who, rather than live in the crosshairs of this broken system, decide to retire or to move away to some other location.

I know there are others, such as Senator DeWine, who want to speak after me, so I will conclude my remarks. But I plead to my colleagues to allow this matter to be debated. That is all we are talking about at this point. All we are looking for is 60 Senators who will have the courage to stand up to the trial bar, the personal injury trial lawyers, who insist that this matter not be debated on the Senate floor. When so many pay the costs of that intransigence, I suggest that is just not fair and it is not just.

I encourage our colleagues to reexamine their conscience and ask whether they are serving the best interests of their constituents, and in this specific instance so many women who need a doctor to deliver their baby. This country's future depends on those healthy babies being delivered and becoming productive citizens, not harmed by an avoidable medical complication because the mother, during her hour of need, and the baby during its hour of need could not get the medical care they so richly deserve and upon which America depends.

We must end the liability lottery where only a few patients and even more trial lawyers receive astronomical awards. Even when there is no award in a frivolous lawsuit the costs simply run up what we all pay for health insurance, those of us who can get it, and render many more even unable to get access to health insurance and thus access to health care at all. We must pass meaningful medical liability reform that includes real and lasting change and brings the lessons of Texas and other States that have been successful in passing statewide reform to the entire Nation because, indeed, this is no longer just a State-by-State crisis, as we have seen with 19 States in an emergency situation. This is a crisis that affects our entire Nation. It affects the quality of life that we enjoy and the promise that I believe we all wish to see delivered to every American, and that is the ability to live out our dreams. Part of that means access to decent, good quality health care, something that is being impaired by our failure to act in this instance.

I yield the floor.