Farm, Nutrition, and Bioenergy Act of 2007
Floor Speech
FARM, NUTRITION, AND BIOENERGY ACT OF 2007 -- (Senate - December 12, 2007)
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Mr. DURBIN. Mr. President, I rise in opposition to Gregg amendment No. 3673. He has entitled this amendment the Healthy Mothers and Healthy Babies Rural Access to Care Act. The reason it is called ``rural access to care'' is so he can fit it into the farm bill because it doesn't have much, if anything, to do with the farm bill. It is a bill related to medical malpractice. It is an issue which Senator Gregg dutifully brings before the Senate as often as possible. I respect him for his point of view. I disagree with his point of view. But I think it must be clear to those who are following the debate what is involved in this bill and this amendment.
This is a farm bill that comes up once every 5 years. Senators Harkin and Chambliss have worked hard to put together a bill dealing with farmers and ranchers, nutrition programs, so many other items. Some on the Republican side of the aisle have insisted that is not enough. They want to bring in a lot of unrelated issues and debate them on the farm bill. They were given permission to do so, and Senator Gregg has done just that.
This amendment is important to understand. What Senator Gregg is saying is, there is one class of people in America who will be limited if they are victims of medical malpractice. This class of people in America who will be limited in recovering for the damages sustained by them and their family, this class of people that will be limited are the women of America. Women of America will be the only ones limited in recovering in court if they or their children are injured in childbirth. What is the justice in that? No limitations on men for prostate surgery but limitations on women delivering babies? I don't understand his logic, and I don't think anyone, particularly if they happen to be a woman, can understand why he decided to single out women in America and restrict their recovery in court if they are innocent victims of medical malpractice. That is what he does.
The Senator argues that we have to address the high cost of medical liability insurance and the risk of being sued. That is the reason he wants to limit the right of women in America to go into a courtroom and argue they were either hurt or their children were hurt or killed in the course of childbirth.
He claims his amendment will help ensure that rural women don't have to drive long distances to see a ``baby doctor.'' But it is interesting, this amendment is patterned after a Texas law that did not bring more baby doctors to rural areas. I am sure the Senator from Texas, who will speak after me, will address this.
In 2003, Texas passed its law. At the time it passed, there were 152 counties in that State without an obstetrician, no doctor to deliver a baby. Today, 4 years after the passage of this Texas law limiting the right of recovery for women who were injured as a result of malpractice, the number has not changed. In Texas, 152 counties still have no obstetrician.
The fact that some counties don't have an obstetrician may not be as much about medical malpractice premiums as it is about population. According to the American Medical Association, the number of OB/GYNs nationwide has risen from around 39,000 in the year 2000 to over 41,000 in 2004. So there are more obstetricians practicing. But that hasn't changed the circumstances in rural Texas because the doctors who are practicing medicine involving the delivery of babies are practicing in cities and suburbs. The Gregg amendment doesn't even address that reality.
Supporters of proposals such as the Gregg amendment like to argue that escalating malpractice premiums justify their effort to limit the right of patients who have been injured to seek compensation. We have had this argument before over several years. There is no doubt about it--and I don't argue--medical malpractice premiums went up dramatically. But as so many States have addressed this issue, we have seen a change.
During the third quarter of 2003, malpractice premiums were 28 percent higher than the year before. But by 2004, malpractice premiums increased only 6 percent. In 2005, they did not increase at all. In 2006, they actually dropped 1 percent. In 2007, they dropped 3 percent. Malpractice premiums are going down. Yet Senator Gregg or another of my colleagues on the other side of the aisle dutifully offers this amendment or some variation of it every year without acknowledging the real changes taking place.
Despite all the talk about frivolous lawsuits being filed against medical professionals, medical malpractice payments by insurance companies have remained steady when adjusted for medical inflation. And the number of paid medical malpractice claims per physician in America has actually declined. According to the Kaiser Family Foundation, the number of paid malpractice claims for every 1,000 physicians decreased from 25.2 in 1991 to 18.8 in 2003.
Malpractice premiums are going down. The number of claims being filed per physician is declining. The number of paid malpractice claims is going down significantly.
But even if malpractice premiums were still going up--which is not the case--the Gregg amendment does not require insurance companies to lower them. The Gregg amendment says: We will deny to women the opportunity to recover in court for injuries to them or their babies, and we are hoping the insurance companies will show mercy and reduce premiums as a result. There is no linkage between the Gregg amendment and actually bringing down malpractice premiums.
This amendment limits the damages that can be recovered by victims. Keep in mind, these are victims who have legitimate claims in court. They are the ones Senator Gregg would deny recovery for the actual damages they have incurred.
Now, I will concede he allows some damages to be incurred--medical bills and the like. But he will even, I think, acknowledge there is a limitation on noneconomic damages of, I think--I read quickly through this--I think in this year's version it is $250,000.
Now, if we want to turn this farm bill into a discussion on health care, the issue we should be focusing on is one I think we all agree has to be taken seriously. It is patient safety, medical errors. Dr. Carolyn Clancy, director of the Agency for Healthcare Research and Quality, has called medical errors by doctors and hospitals ``a national problem of epidemic proportions.''
Senator Gregg's amendment does not address this. He does not address one of the causes of injuries to innocent patients who go to a doctor for what are supposed to be routine medical procedures and have a very bad result. He does not address the medical errors that trigger medical malpractice lawsuits.
A far-reaching study of the extent and cost of medical errors in our hospitals was published in the Journal of the American Medical Association in 2003. The authors of the study analyzed 7.45 million records from about 20 percent of U.S. hospitals.
They found that injuries in U.S. hospitals in the year 2000--just 1 year--led to approximately 32,600 deaths, 2.4 million extra days of patient hospitalization, and additional costs of 9.3 billion. That did not include adverse drug reactions or malfunctioning medical devices.
The authors concluded that medical injuries in hospitals ``pose a significant threat to patients and incur substantial costs to society.''
What does the Gregg amendment do about patient safety and medical errors? Nothing.
Here is what it does. It applies an arbitrary one-size-fits-all cap on noneconomic damages in malpractice cases won by the patients. What are noneconomic damages? Pain and suffering, disfigurement, physical impairment, and scarring. How do you put a price on that?
If a person is going to be incontinent for the rest of their life, if they are scarred in the face or another part of their body, if they are in pain and unable to function, is that worth something? In the mind of Senator Gregg, it is only worth $250,000--no matter what. That is it. If your pain is going to be with you for a year, 5 years, 10 years, or 20 years--the same amount, $250,000.
It would reduce the statute of limitations within which an injured patient can bring a lawsuit. It is more restrictive than the majority of the States in the Union, cutting off claims for injuries or diseases. If you do not file the claim on time, Senator Gregg says: Sorry. Bad luck. Sorry that this poor woman is not going to have a chance to recover, but that is the price she is going to have to pay for his reform.
It would allow a reduction of damage awards because of other health or accident insurance the patient might have. Imagine for a minute that you have been wise enough, thoughtful enough, to buy health insurance to cover yourself and your family. Your wife goes in to deliver a baby. The doctor makes a serious error. The wife is injured. The baby is injured, and the baby dies.
Now there are medical bills. Well, it turns out you had health insurance. According to Senator Gregg, we should give to the offending doctor or hospital credit for your wisdom in buying health insurance. In other words, they do not pay for the medical bills if you paid for them yourself through your own health insurance. Does that make sense? Is that fair that the hospital or doctor guilty of malpractice would profit because the victim had health insurance?
His amendment makes it harder for patients to pursue punitive damages, and it would limit how much can be awarded--even when a wrongdoer is found to have acted with malicious intent.
His amendment would allow insurers to string out damage payments over a long period of time, meaning the insurers could keep the interest on that money for themselves.
It would preempt State laws on lots of issues, including whether patients' insurance coverage affects payments, how soon victims are compensated, and, of course, statutes of limitations.
The amendment only applies to lawsuits involving OB/GYNs in rural areas. Women living in rural areas are the ones on whom Senator Gregg has focused. They are the only group of Americans he wants to deny an opportunity in court for full compensation for their damages. I am sure the women of America will be grateful. I do not think, if they read this bill closely, they will believe it is fair or just. I do not.
Why would we want to treat rural mothers differently than those living in the suburbs or cities? This amendment is the wrong solution to the wrong problem on the wrong bill. Congress should not decide what injured patients should receive. We have a system called a justice system. We have judges, and we take an average group of people in America--your neighbors and friends--11 or 12, and they sit in the jury box to listen to the deliberations and decide what is fair.
I think that system has worked pretty well. And over the years, we have said we will allow the States to write the laws about how these lawsuits will be conducted. Over the years, there have been problems with malpractice premiums, problems with patient safety, and the States have responded to it, including my State of Illinois, by changing State law. I believe the majority of States have already changed their malpractice statutes.
That is the proper and appropriate way to approach this issue. Senator Gregg wants to federalize this. He wants to make it a Federal matter. He wants Congress to preempt the decisions of the States, and he wants his law to preempt the decisions of a jury. He believes his wisdom on what a person should be entitled to recover in a lawsuit should be trumping the wisdom of a judge and a jury.
I guess I have more trust in those judges and juries. They do not always come in and award for the plaintiff. Before I came to Congress, I used to handle these lawsuits. I spent a number of years defending doctors and hospitals, and a number of years suing them for medical malpractice.
They talk about frivolous lawsuits. I want to tell you, we fought long and hard before we took a case in my office involving medical malpractice. They are complicated and expensive and went on for a long time. I was not going to take a case that I did not think I could win. It was not fair to the doctor. It was not fair to the plaintiff. It sure was not fair to my family and my law practice. So we did not file anything we knew to be frivolous, just to make noise. We made a point of not doing that.
In this situation, for Senator Gregg to decide that a class of Americans--women in rural areas--are going to be denied their recovery in court, they are going to be treated differently--well, certainly this is a worthy topic for the Judiciary Committee and others to debate at some time about patient errors and medical safety, about malpractice and premiums. But to do it on a farm bill?
We just had a debate earlier about how much money we are going to give to people who grow asparagus. Yes, that was one of the amendments. Now we switch from that issue to a question about whether a mother who is giving birth to a child--where the doctor does not show up on time or does the wrong thing and the child is injured or dies--whether that mother can go to a court and receive compensation.
I think this is an amendment that should be defeated. I urge my colleagues to join me in voting against this amendment--to join me in supporting the basic concept that the States have been the source of statutory regulation of medical malpractice claims, to join me in saying it is not fair to pick out one class of people in America--in this case women living in rural areas--and to say they cannot have their day in court, to join me in saying we should be working together to reduce medical errors and make it safer to go to a hospital, make it safer to go to a doctor.
I respect the medical profession. I cannot tell you how many times in my life I have relied on a doctor or a hospital for care for a member of my family and was thanking God every moment that they were as good as they are, doing as much work as they do, having studied as hard as they did. But, please, this is a piece of legislation proposed by Senator Gregg which has not been thought through. It is not fair. It is not fair to the women who would be discriminated against by this legislation. It certainly is not fair to their families if a tragic consequence of medical malpractice means that a baby or a mother is going to be disfigured, face pain and suffering for a lifetime, to say that no matter how long it goes, no matter what happens, we cannot allow them more than $250,000.
That, to me, is unreasonable. It is unfair. And it has no place on this bill. I urge my colleagues to defeat the Gregg amendment.
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Mr. DURBIN. Mr. President, obviously the Senator from New Hampshire does not want to explain his amendment. I will. This is a medical malpractice amendment on a farm bill. This amendment picks a class of Americans who will be denied their day in court and restricted in what they can recover if they are victims of medical malpractice.
The people who will be denied their day in court, a class, women, women living in towns of 20,000 of population or less, and their children, those are the only people who will be denied the right to go to court.
If you think this is wise policy for America, to say to victims of medical malpractice who live in small towns they cannot go before the court and jury for fair compensation for their injuries, then I assume you will support this amendment.
But if you believe the medical malpractice does not belong in the farm bill, should not specify one class of Americans to be discriminated against and that we should give those victims a chance for their day in court, please vote no.
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