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

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

Mr. DURBIN. Mr. President, it is my understanding we are considering S. 2061, with 10-minute allocations of time for each Senator who is recognized?

The PRESIDING OFFICER. The Senate is debating the motion to proceed to that measure. An order has been entered limiting Democratic Senators to 10 minutes each.

Mr. DURBIN. Mr. President, I rise pursuant to that order to speak for 10 minutes about S. 2061. This bill which is pending before the Senate addresses a very serious national issue of medical malpractice. Medical malpractice insurance premiums have increased in my State of Illinois and across the Nation. Because of those increases, a lot of good doctors have been forced to a position where they have to retire or relocate their practices. I have met with those doctors. I understand the problems and dilemmas they face. I think we need to address that here in the Congress. This point is dramatized by the fact that the bill before us is unfortunately not a bill which has been the product of any effort to find compromise or common ground or bipartisan answer to this national challenge.

This bill without referral to committee was sent to the floor of the Senate. It is a bill which, frankly, was introduced by Senator Gregg of New Hampshire, a bill which ordinarily would have been referred to the Senate Judiciary Committee. The bill did not go to that committee. Senator Gregg does not serve on that committee. The bill was sent to the floor. I am afraid what this bill is all about is trying to make certain we make a record rollcall on this issue so that those who are supporting this bill will go back to some members of the medical committee and say all Senators who voted against it don't want to help you with increasing medical practice premiums. That couldn't be further from the truth for this Senator.

I have strong feelings about what we need to do. I believe we need to be doing something. We need to address the issue in a comprehensive way. We shouldn't be afraid to look at all aspects of this challenge.

The first aspect of this challenge is that there are too many medical errors today in hospitals and doctors' offices across America. Don't take my word for it. The Journal of the American Medical Association reached that conclusion and said medical errors are of epidemic proportions across America. The Institute of Medicine estimated that in any given year, 24,000 to 98,000 Americans lose their lives because of medical negligence. This bill doesn't even address that issue. It addresses medical malpractice in a courtroom. It doesn't address it in a doctor's office or in a hospital.

The first thing we should do is see how can we work with the medical community and the hospitals to reduce errors, reduce negligence, and reduce the incidence of these grievous injuries and death that occur as a result.

Currently, when you look at the universe of possible medical negligence and the lawsuits filed as a result of it, a tiny fraction-some 2 percent or less-end up in court. It means that 98 percent or more of the medical negligence that is committed in America does not result in a lawsuit.

If we want to make certain we have fewer cases going to court, let us start at the beginning. Let us make the practice of medicine safer. This bill does not even address that issue.

Second, if you are worried about the cost of medical malpractice premiums, isn't it reasonable to ask whether the insurance companies are treating doctors and hospitals fairly? This bill doesn't have a word in it about insurance companies and their responsibilities. Why are we afraid to even ask? Why wouldn't we have all the books open to find out whether what is happening to doctors' medical malpractice insurance is a result of some insurance practices which should be changed?

The third element is tort reform. I used to practice law. I was a trial lawyer. I defended doctors for many years and hospitals-and I sued them. I have been on both sides of the table. I understand those lawsuits, or at least how they were conducted in Illinois 20 years ago. So I have at least a passing experience with this issue. I think in my practice I would never have considered taking a so-called frivolous lawsuit forward. It costs too much money. It takes too much time. You wouldn't want to put your plaintiff client through it, you wouldn't want to waste your time and money, and you would not want to run the risk at the end of the day that you would lose-or worse, be sanctioned by the court for raising a frivolous lawsuit. I think there are ways to stop it. A small percentage of lawsuits shouldn't be filed against doctors. This bill doesn't deal with frivolous lawsuits, and it should.

The last element it should address in tort reform is one that I think is essential; that is, to make certain, while we try to reduce the likelihood of frivolous lawsuits, we don't close the courthouse door for those innocent patients who are the victims of medical negligence. That is what this bill does. This bill says that instead of a jury in your hometown deciding what your injury is worth, instead of your peers in the community, your neighbors sitting in the jury box considering the evidence and the law and deciding what the value of your child's life is, or your child's health, we instead will make that decision here on the floor of the Senate. We will say that no matter what lawsuit you have filed for medical malpractice relating to OB/GYN, you cannot recover under any circumstances, regardless of what happened to you or the baby, any more than $250,000-$250,000 for pain, suffering, and disfigurement.

Two-hundred and fifty-thousand dollars may sound to some like a lot of money. Let me give you a few specific examples of cases I know of, and you decide whether $250,000 is a lot of money.

A settlement was reached last Friday in Chicago-a city I am honored to represent-in the case of Evelyn Arkebauer who gave girth to a quadriplegic son, Andrew "A.J." Arkebauer, on October 4, 1998. Evelyn went into labor at 5:30 in the morning with her second child. She had her first child by Cesarean section, so there was a risk for uterine rupture. Early in the afternoon, the doctor began to administer Pitocin to speed up labor.

At 6:15 p.m.-more than 12 hours later-the doctor cut off the Pitocin and told Evelyn to start pushing. Evelyn pushed for more than an hour and a half and was rolled from her back to her side as the baby's heart rate fluctuated during this labor.

At 7:53 p.m.-more than 12 hours into labor-the doctor decided an emergency C section was necessary and paged the anesthesiologist to come to the delivery room. The anesthesiologist failed to return the page and numerous pages after that.

Finally, an hour after the doctor had decided on an emergency C section, the anesthesiologist showed up and the procedure began. The doctor discovered that the uterus had already ruptured. The baby had been without oxygen for 10 to 15 minutes. This baby is quadriplegic and spastic. He cannot walk, talk, or feed himself and will require full-time care for the rest of his life on Earth. This baby had no injury to his cerebrum, so he has normal cognitive thought, meaning he thinks like a normal child but is trapped in a body he cannot use.

During the trial, a nurse working the night of Andrew's birth testified that the anesthesiologist was with her in a private room on the hospital's fourth floor and that he ignored three different pages to respond to this emergency C section before going to the fifth floor delivery room where Evelyn was. This baby-quadriplegic and spastic for the rest of his life with a mind that is functioning-has a body that cannot be used.

This bill, S. 2061, says the jury of the Senate will decide the cases exactly like this-that that baby and that baby's family can recover no more than $250,000 for a lifetime of pain and suffering. That is not fair. It is not just. It is not reasonable. It may reduce medical practice premiums but at the cost of justice.

Gina Santoro-Cotton was 29 years old and pregnant with her first child. Her prenatal course was normal. She was admitted to the hospital 1 week after her due date to induce labor. The drug Pitocin was used. Within a few hours of starting Pitocin, deceleration of the baby's heart rate was noted. The Pitocin was not stopped, which is normally done when there are signs that the baby is in distress.

By early afternoon, the fetal monitor strips showed signs of oxygen deprivation to the baby-a clear warning sign. The Pitocin was still not stopped. At 2:45 p.m., the baby had a prolonged drop in his heart rate. The Pitocin was finally stopped and the baby was resuscitated in its mother's womb.

Within hours, the Pitocin was restarted, and decelerations and other signs of poor oxygenation to the baby appeared. Rather than stopping the Pitocin, the dose was increased.

At 7:30 p.m., there were still severe decelerations on the fetal monitor strips. Pitocin was increased.

At approximately 9:45 p.m., Pitocin was finally stopped and the baby was delivered. The baby was near death at the time of delivery.

Today, that baby is 6 years old and permanently disabled. He has severe cognitive dysfunction and is partially paralyzed in all four of his extremities. He has motor problems, and he can't walk. His speech is not understandable. He is fed through a tube in his stomach because he cannot feed himself. He has paralysis of the vocal cords. He requires care 24 hours a day and extensive therapy.

There are Senators who come to the floor and talk about cases just like this and call it jackpot justice, arguing, I guess, that the parents of that little baby, who will be functionally impaired for his entire life, will never be able to express himself, will never be able to feed himself or walk-that the parents of that baby, if they recover a verdict in court, have somehow won a jackpot. How many of us would want to buy a ticket for that jackpot? How many of us would sacrifice the health of any child, let alone our own children, with the prospect of recovering a verdict?

This bill before the Senate has said that in cases just like this, no matter how serious, no matter how long that baby lives, no matter what conditions that baby faces, the rest of its natural life, the sum total and value of the pain and suffering of that baby and its family can never, ever, be worth more than $250,000. And if that baby, who is now 6, lives 20 years, is it worth $10,000, $12,000, $1,000 a month for what that family will go through? I don't think so.

Let me discuss one last case. Terri Sadowski was pregnant with her second child. At 34 weeks, she went into preterm labor and had a rupture of her membranes. Medication was not successful in stopping her labor so she was transferred from a community hospital to a high-risk referral center, to the care of a perinatologist, a specialist in high-risk pregnancies.

The perinatologist decided to let Terri proceed with labor and deliver normally even though the baby was in a breech position. The doctor also decided to administer Pitocin, a medication to bring on contractions. Within 3 hours of starting the Pitocin, the fetal heart rate began to show signs that the baby was in distress. A normal heart rate for a baby in the mother's womb is 120 to 160 beats per minute. This baby's heart rate was dropping in the 70s. By the time Terri was ready to start pushing, the fetal monitor strips showed significant fetal heart rate decelerations with a consistent heart rate in the 60s and 70s. Despite the overwhelming evidence that the baby was in severe distress, a decision to perform a C section was not made for 40 minutes.

An emergency C section was done but the baby had no movement and was unresponsive. She developed seizures shortly after birth. She sustained severe brain damage due to lack of oxygen in labor in delivery. Had the perinatologist performed a C section, the baby could have been a normal, healthy baby.

The baby lived for 1 year in a vegetative state. During her short life, she had multiple hospital admissions for pneumonia, bowel obstructions, unable to suck, and she required tube feedings and constant suctioning to keep her airways clear. At the time of death, she had frequent seizures.

Think about this for a moment. Think about the happiness each of us has been lucky enough to experience in life from a family and children. And think about something going wrong in that delivery room, something that results in a baby facing a lifetime-long or short-in a terrible situation.

The parents were not at fault. They were not at fault in any of these cases. Eventually they went to court and asked for compensation for what they would face for medical bills, what they would face for pain and suffering, and a jury from their community decided what it was worth.

This bill says it really should not be a decision of a jury, it should be a decision of the Senate, a one-size-fits-all, one solution for every problem, $250,000, take it or leave it. That is not right.

I say to my friends in the medical profession, I know you are not perfect, you are humans; you do make mistakes. Quite honestly, those who have dealt with doctors and have great respect for them know that the overwhelming majority of doctors are good men and women, well trained, dedicated to their profession, who make sacrifices every single day way beyond those called on by Members of the Senate.

Having said that, doctors I have spoken to understand that even giving it their best, occasionally they make a mistake in judgment-they do not know enough, they did not do the right thing-and terrible things occur. And most of them, under those circumstances, say yes, in those cases, people who are the victims of that kind of a circumstance should be compensated. I certainly believe that. It is not fair to establish an artificial limit and say that no matter what happens to that baby or that mother, there will never be another nickel beyond $250,000; a lifetime of pain and suffering limited to $250,000 in recovery.

To my friends in the medical profession who have a genuine concern, as they should, about the increase in medical malpractice premium rates, let me say you are not going to get any favor with this bill. This bill is being offered for reasons I cannot explain. It is being offered in the name of OB/GYNs across America who certainly do need help and need it now. But it is a bill that also includes immunity and relief from liability for pharmaceutical companies and medical device companies. I am sorry, but I have not heard anyone with a hue and cry about a crisis when it comes to these companies dealing with medical malpractice claims. But, naturally, they are included here because most bills that come through have to have a provision to help drug companies. They are the poster kids when it comes to this Congress. We are always going to find ways to help them.

For once, why don't we try to help the families who are the victims? And why don't we try to help the good doctors who need a helping hand?

I will make this statement in closing before I yield the floor: I want to work with those Members of the Senate on both sides of the aisle who in good faith want to address this issue. We can do things to deal with this. We must do them. We should do them now. This bill is not the way. This bill is a bad start. It is better to come together, off the Senate floor, try to find common ground and compromises on a bipartisan basis to protect the medical profession, on whom we all rely so much. We want to give the men and women in that profession, who have given their lives to serving us, a chance to practice medicine without skyrocketing premiums, but to also say to the families and patients who come to these doctors and these hospitals, we will not abandon you in the process.

There is reason to believe we can find this common ground. This bill is a bad start. It is likely to be defeated today. Once defeated, I hope Senators who believe, as I do, that we should address this issue will come together to try to find that common ground.

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