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. DURBIN. Mr. President, I thank the Senator from Nevada. I know of his personal interest in this issue. He has offered legislation before. Today we are considering S. 2061, which has been offered initially by Senator Gregg of New Hampshire and Senator Ensign.

It is important to note that this bill, which was brought directly to the floor, has not been the subject of any committee hearings. In fact, there has been no effort, to my knowledge, to sit down and find a bipartisan compromise or sponsorship for this legislation. This bill was presented to the Senate a few days before we went into recess, and now it is being called this day.

What is interesting, as well, is that there are announcements from the Republican leadership that we will quickly move after the vote on this bill to other issues, and they have been enunciated.

The point I want to make is this: I don't believe this is a constructive effort that leads us to a solution to a national problem. This, instead, is a bill being called for one reason only: To get a rollcall. It is a bill being called today to put Senators on the spot. Vote yes; vote no. Why? Because, frankly, there are some on one side of the issue who want to demonstrate that they are concerned. So they are bringing a bill to the floor. They want a rollcall so they can say to those who are looking for some change and for some legislative progress: See, we moved quickly on this. We brought a bill to the floor and, darn it, it didn't pass. We will try to get to it later in the session.

From my point of view, that is not the way to approach this. We should have dealt with this in good faith and constructive, bipartisan effort to try to find a solution to a serious national problem. But that is not the case. Instead, we are having a head-on collision between the trial lawyers on one side and the doctors on the other side.

I come to this debate as someone who had a little bit of experience in this issue a long time ago. Before I was elected to Congress 21 years ago, I was a practicing lawyer. I used to defend doctors who were sued for medical malpractice. I did that for 5 or 6 years. I came to understand the nature of these lawsuits and how complicated and painful many of them are. Then I was on the other side of the table, representing patients who went into a doctor's office or a hospital and were injured and they sought compensation because of these injuries. So I have seen both sides of the issue. I come to this debate with the belief that we need to bring all of the parties together to find a solution. What we have with this bill, I am afraid, does not come close to addressing a serious national issue.

Mr. President, I see that the Democratic leader, Senator Daschle, has taken to the Senate floor. I planned on giving a rather lengthy speech. At this point, I would like to yield the floor to the Senator from South Dakota and then I can resume after he is finished.

Mr. DURBIN. Mr. President, I thank the Senator from South Dakota because I think he has raised an important issue of concern in this debate and that is one I have initiated in my opening remarks. We need to have a constructive bipartisan conversation about a serious national problem. Instead, this bill, S. 2061, was introduced just a few days ago without a committee hearing, reference to committee, without any attempt to find common ground and find a solution. In fact, it is being called today so there will be a vote on record and nothing else. It is anticipated the bill will not go forward.

I spoke to doctors in Illinois over the weekend, doctors who share my concern about the medical malpractice premium situation in our State. I have told them what we are doing today is frankly a political exercise. It is an exercise to come up with a roll call vote so those on one side of the issue can go to their supporters and say, we have worked hard. We brought this bill to the floor, we have been stopped, and we cannot get back to it because we are so busy. Frankly, that is no solution. In State after State, including my State, there are areas where there are serious medical malpractice premium problems. They arise for a variety of reasons. Memorial Hospital in Belleville, IL, has lost numerous obstetricians and gynecologists in the last year due to rising malpractice premiums. Community leaders in that town, which I am familiar with-it is an area I grew up in-have come to me and said, this is a real source of concern. We are losing doctors. They are doctors who are leaving the practice to retire early, and I met one doctor in that circumstance. There are some who are moving to rural counties where the malpractice premiums are lower and they are further away, of course, from the people they originally served. Some are moving across the river to Missouri where they are finding malpractice premiums are a fraction of what they are in Illinois.

There is no doubt in my mind there is a serious problem that needs to be addressed. It is not just in the obstetrical/gynecological area. The OB/GYN issue is an important one, but there are other areas of need relative to trauma care, neurosurgery, and orthopedic surgery. The list is long and we need to address it in a serious and responsible way.

This bill, however, is being brought to us on a moment's notice. This bill is being brought to us in an effort to really check off the box that says, yes, we considered medical malpractice and now we are going to move on. That is unfair and it is unfortunate, and we can do better.

I will tell my colleagues a story about some of the situations I know of in my State. Eduardo Barriuso, who is a physician in the Humboldt Park area of Chicago, pays $104,000 a year for malpractice insurance. He earns about $175,000 because the patients he sees are poor patients, Medicaid and Medicare patients. Doctors who depend on Medicaid and Medicare are not wealthy individuals, but they perform a valuable function because if they are not there to serve the poorest of the poor, then who will?

This doctor says that faced with $104,000 in annual premiums and a $175,000 annual income, he cannot continue his practice, and he certainly cannot pass on the higher costs of medical malpractice insurance to his patients who are poor people.

Another Chicago area OB/GYN has announced he is going to study to obtain his pharmacist license. Right now he is paying $115,000 a year for liability insurance.

Let's go to the root cause of the issue. Why are we even debating this issue of medical malpractice? There are several reasons. First, the men and women who are engaged in the medical profession are some of the most important people in our lives, some of the most important people in America. These are men and women who at great personal sacrifice go to medical school so that they are trained and skilled to be there when we need them, when our families need them. Time and again, my family and most who are following this debate have turned to a doctor in the hopes that he or she can cure an illness, provide some hope, give people some reason to believe they can overcome a disease, disability, or an injury.

Doctors are so critically important to all of us and yet when one takes a look at a doctor's practice, at a doctor's skills, there is a human side to the equation. They are human beings. They do make mistakes. Some are simple negligence. Some are far worse. When these mistakes occur, when a patient is in a hospital or a doctor's office and the wrong thing is done and that patient is injured, what should happen? In most walks of life in America, we are held accountable for our actions.

If I decide this evening to take my car and go out speeding on a highway, strike another car and injure someone, I will be held accountable. I was negligent. I did not reach the standard of safety that is expected of me as a driver and I must pay the price. That is true for businesspeople, for individuals, for virtually everyone in America. It is certainly true for medical professionals. When they make a mistake by negligence or intentional misconduct, they can and should be held accountable. I think that is part of our system of justice. Very few, if any, people argue that is not a reasonable thing to do.

How serious then are the number of medical errors and medical malpractice cases that occur across the United States? Well, the most far-reaching study of the extended cost of medical errors in hospitals and doctors' offices was published by the Journal of the American Medical Association last October. This is a dispassionate, objective analysis of the likelihood of medical errors and medical negligence in America. The authors of the study analyzed 7.4 million patient records from 994 hospitals in 28 States, representing some 20 percent of all the hospitals in America. This was an exhaustive study.

They concluded medical injuries in hospitals "pose a significant threat to patients and incur substantial costs to society," and "are a serious epidemic confronting our health care system."

A study in the Journal of the American Medical Association has told us as we go into this debate the first thing we can acknowledge is we have an epidemic of medical negligence in America. Now this was not the Journal of the American Trial Lawyers. This was the Journal of the American Medical Association. They published a study that told us and warned us we have a serious problem in America.

The study found injuries in U.S. hospitals in the year 2000, for just one year, led to approximately 32,600 deaths, at least 2.4 million extra days of patient hospitalization, and additional costs of up to $9.3 billion. These injuries did not include adverse drug reactions or malfunctioning medical devices.

Dr. Carolyn Clancy, Director of the Agency for Health Care Research and Quality, called medical errors "a national problem of epidemic proportions."

This was at a hearing before the Government Affairs Committee last June. She said Congress and the Bush administration need to make sure health care professionals work in systems that are designed to prevent mistakes and catch problems before patients are injured.

According to the Institute of Medicine, the medical errors epidemic has caused more American deaths per year than breast cancer, AIDS, and automobile accidents combined. It is the equivalent to a jumbo jetliner crashing every 24 hours for an entire year.

More than 70 studies of the past decade have documented serious quality problems in medical treatment, yet this bill before us today, S. 2061, does absolutely nothing to address this underlying problem of patient safety. How can we in good conscience talk about a medical malpractice problem and conclude the only place we need look is to the courtroom, to the patient once injured who goes to the courthouse seeking some compensation, some accountability for an injury that was absolutely no fault of their own? Yet the bill before us is absolutely silent when it comes to making doctors' offices, hospitals, and patient treatment safer.

This last Sunday in the New York Times, an interesting article on patient safety was published. I ask unanimous consent that the article be printed in the Congressional Record.

Mr. DURBIN. Let me just note a few things about it. It is entitled "Running a Hospital Like a Factory, in a Good Way."

The article tells a story of a hospital in suburban St. Louis, the SSM St. Joseph Health Center. It is a very complimentary article. The hospital is a nonprofit institution run by the Franciscan Sisters of Mary and the chief executive, a former seminarian, has really decided to make St. Joseph's Hospital different. They have decided they are going to go after quality control and the reduction of patient injuries and accidents at their hospital. They are using techniques that are used by private industry. I will quote from the article:

Other hospitals are also starting to use some of the techniques that have made the hospital industry more efficient in its quest to improve quality and save money. Every year, preventable medical errors cost $9 billion, and tens of thousands of lives, according to a recent study by the Agency for Healthcare Research and Quality, . . .

So this hospital, St. Joseph's, in suburban St. Louis, decided to consult with General Electric, a major corporation, to find a way to make the services they offer to their patients better. They are using a process called Six Sigma. It is a statistical measure and refers to the goal of reducing errors to 3.5 parts per million. What they found is this:

New devotees of quality are beginning to measure and analyze everything from waste and waiting time to infection rates and the narrow avoidances of mistakes in treatment, as well as organizational barriers to improvement.

The article says:

In a culture ruled by a fear of malpractice, the focus on quality involves a shift from secrecy to transparency-including reporting and dissecting mistakes.

Let me go on in the article. They noted here one specific example. The New England Journal of Medicine had linked high glucose levels to an increased chance of infection, so this hospital decided, particularly in the emergency room and for critical patients, to continue to monitor their glucose levels to avoid the incidence of infection. The blood sugars declined among patients when they started monitoring them and administering insulin to keep blood sugars down. Simply by using this quality approach to reduce the likelihood of infection, this hospital reduced the overall mortality in the intensive care unit by 40 percent. The results were so astonishing that the hospital-and I quote again:

. . . decided to make the reduction of glucose levels of all patients, not just those in intensive care, a quality goal. Today, all patients are given glucose tests and, if necessary, get insulin. Hospitalwide, that change is credited with reducing deaths overall, not just from infection, by 28 percent from the average recorded from 1998 to 2001.

Blood sugar in this hospital, once measured four times a day, now is measured 12 times a day.

Those who follow this debate and will read this article in the Congressional Record I think will understand the point I am trying to make. If we are going to reduce the likelihood of doctors being sued for malpractice, the first stop in that conversation should be the reduction of medical errors. If we do that, we are serving two goals: reducing doctors' exposure to malpractice and we are making certain that patients will go through their medical experience with a much better outcome. You would think that would be the first title in this bill, "Reducing Medical Accidents, Reducing Medical Errors." This bill does not even address that. This bill says that after you are injured, after you have gone to court, after you have successfully been given a verdict, this bill is going to restrict and reduce the amount of money you can recover.

From an insurance company's point of view and the view of some doctors, that is good enough. But from the viewpoint of making American hospitals and medical practice safer, that is hardly the place to start. Frankly, this bill does not address the core issue.

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

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