Order of Procedure

ORDER OF PROCEDURE

The PRESIDING OFFICER. The Senator from Illinois.

Mr. DURBIN. Mr. President, I ask unanimous consent that the 10 minutes already allocated to me be increased to 20 minutes and include the time previously allocated to Senator Dayton of Minnesota.

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

Mr. DURBIN. Mr. President, I thank the Senator from Minnesota for yielding me the 10 minutes so I might speak to this important issue this morning. I thank the Senator from Nevada for illustrating to us a serious challenge that faces America. There is no doubt in my mind, nor in the minds of those who studied this issue nationwide, that we need to do something as a nation to deal with medical malpractice liability.

It is clear that in many parts of our country, in many parts of my State, the cost of medical malpractice insurance has gone up dramatically, to the point that some doctors are moving to other States and some are retiring. That is a reality. It is a reality in Illinois. It is a reality in other States. I believe we need to do what is necessary on a bipartisan basis to grapple with this issue.

Although it will be the first time in history the Federal Government would take on the question of civil procedure and medical malpractice cases in States, frankly, it may be the only way to approach it. So I agree with my colleagues on the other side of the aisle that inaction on our part will only make this problem worse. We need to move forward. But I come today to tell you the bill before us, S. 2207, is not the right approach.

I encourage my colleagues on both sides of the aisle to look at this bill carefully. I hope they will view, as I do, this bill as an honest attempt to identify a problem but a very inadequate attempt to solve it.

Let me say at the outset that a lot has been said about emergency rooms, which are covered by this bill. Some has been said about OB/GYNs delivering babies, and that is covered by this bill. But the sponsors of this bill have not mentioned the fact that it also exempts from full liability drug companies, medical product manufacturers, insurance companies, those who make vaccines that cause problems for children. They are also included in this bill.

So much has been argued about the doctors in the emergency rooms, but the full scope of the bill has not been described, at least as long as I have been on the floor.

Let me tell you what I think is wrong with this bill. Here is what the bill says: The bill says in cities and communities across America where we rely on a jury of your neighbors and friends to come together and decide what is fair and what is just, when it comes to those lawsuits involving injuries, coming out of, for example, an emergency room treatment, no longer will a local jury decide. The case will be decided on the floor of the Senate. One hundred Senators will decide today with this bill that regardless of what happens to you or your child when you go to an emergency room for treatment, regardless of the possibility that you brought your child in as an innocent victim seeking medical care at an emergency room, and that child, the love of your life, became the victim of medical malpractice, regardless of the circumstances, we will decide on the floor of the Senate, if that child is facing a lifetime of disability, a lifetime of disfigurement, a lifetime of pain and suffering, we, the jury of the Senate, will decide it will never be worth more than $250,000 for the pain and suffering, for the disfigurement, for the incapacity they will face. That is what the bill says.

When you look at it you think, why? Why would we decide that regardless of the lawsuit, someone could never receive more than $250,000 for pain and suffering, for noneconomic losses? The argument is, unless we put a cap on the possible recovery in a lawsuit, malpractice premiums will continue to rise and doctors will not be able to afford them. That is the premise. That is the argument of this bill.

So the first thing I would like to do is question that premise. Let's look at the facts.

Here we have OB/GYN insurance premiums in States with caps, with limitations on the amount a jury can award, and without caps. In California, with caps of $250,000, called for in this bill, we see a 54-percent increase in the year 2003 in medical malpractice premiums; Oregon, with no caps, 0 percent increase; California, a 15-percent increase versus the State of Washington, 0 percent; Colorado, a 29-percent increase where they have caps and limitations on jury verdicts, and in Georgia with no caps, a 10-percent increase; New Mexico, with caps on how much the jury can award, a 52-percent increase in malpractice premiums; Arizona, right next door with no caps, no limitations, only a 14-percent increase.

So the argument that caps will bring down premiums is illustrated here to just be wrong. The premise is wrong. The argument is wrong.

Take a look at the premiums and what has happened in States without caps between 1991 and 2002 and those with limitations on jury verdicts.

Arizona in this period of time of 10 or 11 years, 3-percent increase; New York, 6 percent; Georgia, 8 percent; Washington, 27 percent. These are States without caps. Then take a look at the States with caps, with limitations on jury awards, 50-percent increase in California; 60 percent in Kansas; 82 percent in Utah; 84 percent in Louisiana. The argument is made-and I heard it on the floor this morning-that it is because so much is being paid out in terms of verdicts, and that is why premiums have gone up.

There is little or no correlation between the amounts that are paid out in verdicts and settlements and what happens to premiums. One would think there would be a direct correlation, but look at this situation. The State of Hawaii, a 527-percent increase in 10 years in the amount paid out in medical malpractice suits, a 10-percent increase in premiums; Iowa, a 87-percent increase in payouts, a 12-percent decline in the premiums charged. The case is illustrated and goes on.

The point I wish to make is if the premise of this law is establishing caps will bring down malpractice premiums these two things we can be sure of: There is no evidence to support it in many of the States with the strictest caps and, secondly, if there is any benefit to be realized by establishing caps it will be years before it is realized. That just reflects the fact that lawsuits filed for malpractice are filed years after the event occurred. Frankly, if there is any benefit to be realized, doctors and hospitals today will not see it for a long time.

The second thing that I think cries out to be said when it comes to capping what a jury can award in a case involving medical malpractice is the fundamental injustice involved in this. Here we have to go beyond the theoretical, beyond the statistical, to the real world of what happens when people show up at emergency rooms for treatment.

This is a beautiful young girl, Shay Maurin, from Hartford, WI. She was the victim of medical malpractice. On March 5, 1997, her mother took her 5-year-old daughter Shay to a local clinic because she thought something was wrong. She was not sure what it was. The physician's assistants at the clinic thought Shay might have diabetes but did not perform any tests.

The mother then took her daughter to the emergency room, where she told the emergency room doctor that the clinic thought this little girl might have diabetes and maybe that was why she was sick. She was 5 years old.

Although her daughter was exhibiting signs and symptoms of diabetes, the emergency room did not administer the standard finger-stick test, the basic test that people suffering from diabetes go through regularly to monitor their blood insulin. Instead, this little girl and her mother were sent home from the emergency room.

This little girl died of diabetic ketoacidosis the following afternoon. That occurs when a person who has diabetes is not treated with insulin. The body's blood sugar builds up to extremely high levels. The body cannot metabolize what the person eats. The body becomes severely dehydrated. Acid buildup occurs, leading to swelling of the brain and death.

The emergency room which failed to administer the most basic test, after being told by the mother that they suspected she was suffering from diabetes, was found 88-percent responsible for her death and the clinic 12-percent responsible. If we pass this bill, we have decided that the jury of the Senate would say to this little girl's family: The maximum you can recover for the losses and pain and suffering for this little girl is $250,000.

Let me tell my colleagues a story of another young girl. This beautiful little girl is Lauren Meza. On January 2, 2000, Jennifer Meza took her 2½-year-old daughter Lauren to the emergency room at the recommendation of her pediatrician.

The baby's symptoms indicated that she may have had pneumonia. The child's father was being hospitalized for pneumonia at the time she developed the symptoms. The emergency room doctor refused to perform any tests, insisting to Ms. Meza that her daughter would be fine and she should go back home.

Two days later, Ms. Meza brought Lauren back to the pediatrician, who was alarmed at her deteriorating condition. The doctor determined she needed immediate emergency care and she was airlifted to another hospital where she was treated for a condition that left her body unable to expel toxic agents and waste products, forcing them into her bloodstream. As a result of the emergency room doctor's denial of care, she is facing dialysis and a kidney transplant before she turns 10 years of age.

What this bill says is that this little girl, Lauren Maza, facing a lifetime of dialysis and ultimately a kidney transplant, would never be allowed more than $250,000 for any pain and suffering which she sustained because of the clear negligence of the emergency room doctor.

Let me tell my colleagues about a case that involves a person who is somewhat older but illustrates this point again. On January 22, 2000, Barbara Jackson complained of chest pains. Her coworkers thought she might have had a heart attack. They called an ambulance. She is from Melrose Park, IL. The ambulance driver suspected a heart attack, but the emergency room personnel waited nearly an hour to do an EKG. More egregiously, they gave her drugs that actually precipitated the heart attack. The attack was so serious this woman lapsed into a coma. She is now in a vegetative state living with her sister who cares for her every single minute of every day.

Her family believes she is capable of feeling pain. Proper medical treatment, nursing treatment, and rehabilitation will cost more than $20 million if she lives to full life expectancy, which her doctors expect.

A mistake made in an emergency room, a woman in a vegetative state for the rest of her time on Earth, and the jury of the U.S. Senate has reached a verdict. For pain and suffering, in Barbara Jackson's case, no more than $250,000.

Not only do caps not work to bring down malpractice premiums in case after case, they are fundamentally unjust and unfair. There has to be a better way. We have to deal with a standard that will bring down malpractice premiums but not at the cost of fairness and justice.

It is a simple fact of life, and one which I wish were not the case, that more and more medical errors are being committed. We cannot expect doctors and hospitals to be perfect. They are human. There are times, unfortunately, when they are negligent, when they do not meet the standard of care which we can expect of every physician and every medical provider. In those instances, they should be held accountable, as all of us are held accountable for our wrongdoing.

That accountability means they should be held responsible for the real problems they create, the damages that are created by their misconduct.

We have had so many surveys of hospitals. A study recently found that injuries in U.S. hospitals in the year 2000 resulted in 32,600 deaths. Some have estimated some 98,000 people die each year from malpractice. Only a small percentage of these cases ever end up in a lawsuit, ever end up in a trial.

We need to address this issue at three levels. First, let us make the practice of medicine safer, and we can do that. Secondly, let us deal with tort reform. I have told my friends who are trial lawyers-and I practiced law myself before I came to the Senate-we have to step up to and accept responsibility for change that will reduce the number of frivolous lawsuits and give those truly deserving their day in court. Third, insurance companies have to be held accountable for their misconduct. If they are gouging, if they are overpricing, then we, as a government, need to stand up to that industry as well.

Three parts: Reducing medical errors, tort reform, and insurance reform are the way to approach it. I say to my colleagues on the other side of the aisle, join me in a bipartisan effort now to go beyond this issue of caps, which will not solve the problem, caps that are fundamentally unfair, and let us talk about real solutions.

Think about this bill that is before us for a moment. This bill says that if one is brought to an emergency room because they were in serious trouble and medical conditions are such that warrant it, they will be limited in how much money one can recover if they are an innocent victim of medical malpractice. However, if one is admitted to the hospital, through the front door and not the emergency room, these limitations would not apply.

Think of it as well from the OB/GYN point of view. It is true that OB/GYN premiums have gone up astronomically in some areas, and we have to zero in on that, but we are saying someone who is a victim of malpractice by an obstetrician gynecologist will have a limitation on how much they can recover while someone else in the same hospital being operated on by a doctor with a different specialty will not be subject to these limitations. That is just fundamentally unfair.

I think what we need to do is open the door for conversation, but first we need to close the door on this concept. This is not the right approach.

I have met over the last several months with scores of doctors and hospital administrators in my State, and I say to them in all seriousness and sincerity that we have a problem in Illinois, as well as a national problem.

I have invited Members to come to the table after this legislation is defeated today and sit down in an honest, bipartisan fashion to look for solutions that will solve this problem. I believe we can find it.

The Senator from South Carolina who is presiding has joined me in bipartisan legislation that really tries to approach this from a new innovative, creative, and positive point of view that does work. I think we can achieve that goal. But to achieve it we need to bring the medical professionals into the room along with those who are representing the victims of medical malpractice. Once that conversation takes place, if it takes place in good faith, I am confident we can come up with solutions.

I urge my colleagues to vote against the motion for cloture on proceeding to this bill. It has not been subjected to hearings. It includes things which were not talked about on the floor-protection for insurance companies, protection for pharmaceutical companies and medical device manufacturers. Let us get down to the business of trying to solve this problem and doing it in a fashion that is reasonable and effective and bipartisan.

I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Texas.