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

Ms. CANTWELL. Mr. President, I will not be voting for S. 2061, a bill that imposes very low damage caps on noneconomic damages in cases involving obstetrical services. I cannot support the bill before us today because I do not believe it would be effective in reducing the very serious problem that we have with rising medical malpractice premiums for doctors and hospitals in my State of Washington.

The fundamental premise of the bill is that by placing a very low cap on the amount persons injured in obstetrics cases could receive for noneconomic damages, insurers would respond by reducing premiums for physicians and hospitals. However, multiple studies have now shown that premiums for physicians in States that have already imposed limits on damages continue to increase. According to the Medical Liability Monitor, overall, premiums are 6.8 percent higher for OB/GYNs in States with caps than States without caps, and premium increases last year were slightly higher in States with caps on damages, than in States without them. That is why the Seattle Times, the Seattle Post Intelligencer, The Tacoma News Tribune, The Everett Herald and the Bellingham Herald have all come out in opposition to $250,000 caps in the last 2 weeks. As the editorial board of the Spokane Spokesman wrote last June 4 about proposals to cap damages, "No doctor would prescribe radical surgery based on anecdotes or conflicting data."

In the process of educating myself about this issue over the past year, including meeting with hundreds of Washington State physicians and hospital administrators, touring 29 rural hospitals, and reviewing the claims history of Physicians Insurance, Washington State's leading provider of malpractice insurance, I have asked many of these individuals what they believed the cap on damages should be. The fact that I have received answers ranging from zero to $5 million illustrates the difficulty in determining what a damage limit should be without reference to specific facts. I believe that juries made up of Washington State residents are better positioned to make a determination of appropriate compensation after hearing the facts of an individual case, than are Senators trying to find a one-size-fits-all solution. Washington State has the third best tort system in the country according to the Chamber of Commerce. Our State has long banned punitive damages, and as a result, capping noneconomic damages, without the knowledge of the jury, could lead to very unfair results for Washington State residents.

Imposing a $250,000 cap on noneconomic damages is radical. The $250,000 cap is based on a California law that was enacted in 1975 and has never been adjusted for inflation. While I wish that it were not true, Washington residents are sometimes harmed by negligent care in the course of obstetrics cases, and they suffer genuine damages. Despite efforts to create an exception for the most serious and egregious cases, there is no exception in the bill before the Senate for even the worst cases. Noneconomic damages compensate patients for real injuries including the loss of fertility, loss of a child, or loss of a spouse, as well as for excruciating pain and permanent and severe disfigurement. Caps on noneconomic damages disproportionately affect women and children because they lack the work history to make economic damages very meaningful.

That is not to say that we do not have a very serious problem in our State. Individual physicians have experienced premium increases of up to 75 percent and hospitals have suffered even greater increases. Increases have hit specialists, including obstetricians, particularly hard. This adds to pressure already being felt by physicians and hospitals in our State as a result of our abysmal Medicare reimbursement rate. Washington currently ranks 41st in the Nation and receives only $4,303 per beneficiary. Physician practices are small businesses, and many of our hospitals are nonprofit entities. They cannot be expected to absorb these huge increases without help.

That is why I support many measures that would actually help deal with the problem of rising insurance costs. I believe that we should be exploring the creation of best practices for physicians, which, if followed, would protect physicians from law suits. I also believe that specialized malpractice courts could be a useful tool in curbing abuses of the system.

I also support legislation introduced by Senators LINDSEY GRAHAM and DICK DURBIN. Unlike S. 2061, which relies on damage caps to reduce future premiums, the Graham-Durbin bill provides tax credits to physicians and hospitals to help offset the increases in malpractice insurance. It would also create a medical mistake database, repeal the current law that prevents Federal regulators from examining whether the insurance industry is engaging in anticompetitive behavior and price manipulation to artificially inflate premiums, and impose stricter standards to demonstrate that a malpractice case has merit before it proceeds.

I am committed to finding solutions to these problems to ensure that Washingtonians continue to have access to quality affordable care throughout every city and county in our State. The bill on the floor unfortunately is not part of that solution. Hopefully, the debate doesn't stop today and these other alternatives will be considered.