Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2004

HELP EFFICIENT, ACCESSIBLE, LOW-COST, TIMELY HEALTHCARE (HEALTH) ACT OF 2004

Mr. SCOTT of Virginia. Mr. Speaker, I yield myself 6 minutes.

Mr. Speaker, this bill does nothing to improve the system. It does nothing to deal with the insurance rates and the increases in premiums, but it does deny victims compensation when they are victims of malpractice. I think it may be helpful to go a little section by section to see what is actually in the bill to see how it actually does what some of the people are talking about.

Section 3, for example, is entitled "Encouraging Speedy Resolution of Claims." Mr. Speaker, injured parties do not need encouragement to get a speedy resolution of the claim. This section only invalidates bona fide claims that are filed after a set deadline. It also creates a confusing matrix because some State deadlines are preempted. Others are not. And so you have that confusing matrix of deadlines and may even miss the deadline by mistake.

Section 4 is called "Compensating Patient Injury." Actually, that is the section which limits compensation to innocent victims. It also has what is called the "fair share rule." I think most States, but at least Virginia and many States, allow a victim to collect all of the damages from one defendant. That defendant can then seek contribution from others involved. In practice, that contribution is worked out in advance by who pays for what insurance.

This so-called fair share requires the victim not only to prove a separate case against each and every defendant who may be involved but it also requires the plaintiff to decide and prove what percentage each one owes. Often the plaintiff does not know what happened. All they know is they are a victim of malpractice. This provision will require the plaintiff to have a separate case and pay for the expenses of separate cases against each and every person. Otherwise they may be afflicted with the "empty chair defense" where everybody in the courtroom starts pointing to an empty chair and says somebody else had 10 percent or 20 percent.

Section 5 is "Maximizing Patient Recovery." Actually, that is a provision that limits attorneys' fees making it likely that a plaintiff will not even be able to hire a lawyer. You do not hear any victims groups clamoring for limitation on attorneys' fees. The defendants are not affected by the plaintiff attorneys' fees. They do not pay the plaintiff attorneys' fees. If the award is $100,000 and the plaintiff's attorney charges 50 percent, the defendant pays $100,000. If the lawyer charges 25 percent, still $100,000. If the lawyer does not charge anything at all, just the same, $100,000. The only way that this will help malpractice premiums is if the plaintiff cannot bring the bona fide case at all, cannot bring the case because they cannot hire a lawyer with the fees. That is not fair. It is even more likely when you have this fair share thing where the lawyer has to have five and six cases in the same case.

There is another provision called "Additional Health Benefits." That is a provision that says if the victim has health insurance, the benefit of that health insurance goes to the one who committed the malpractice. In Virginia and many other States, if you have health insurance, you benefit. In other States, the health insurance company can get its money back after the case is settled because the malpractice recovery will pay the health expenses. Presumably under that case, the premiums will be lower. But in this bill, the benefit goes to the one who committed the malpractice. This bill is so bizarre that if you are working for a self-insured employer who is obligated to pay the health expenses of an employee and that employee is a victim of malpractice and runs up a $50,000 hospital bill, the business has to pay that $50,000 bill even though the one committing the malpractice is fully insured and could have paid. I cannot wait for some small businesses to come to us and ask why they had to pay the bill as a result of malpractice.

Mr. Speaker, there is another provision under "Punitive Damages." This bill provides that if a jury finds by the preponderance of the evidence that the doctor acted with malicious intent to intentionally injure a patient, not just recklessly negligent, acted with malicious intent to injure, that is not enough under the bill, because the evidence does not have to be just by the preponderance of the evidence; it has to be by clear and convincing evidence.

Mr. Speaker, this bill will not help injured victims of malpractice, and it is unlikely to reduce premiums. A chart of States in order of the costs of malpractice premiums shows some States at the top with caps, some with caps at the bottom, some with caps in the middle. There is no pattern to the chart. They are all over the place. The caps apparently did not make any difference at all.

We have heard a lot about the doctor shortage. This is not limited to doctors. This tort reform bill affects the health care provider, a health care organization, an HMO, manufacturer, distributor, supplier, marketer, promoter, a seller of a medical product regardless of the theory of liability on which the claim is based. This does not help victims. It probably will not even reduce premiums.

Mr. Speaker, I would hope that we would defeat the bill so that it will not be enacted. That has been the judgment of the United States Congress for the last 14 months. I hope it is still the judgment of the United States Congress.

Mr. Speaker, I reserve the balance of my time.

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Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume.

I will enter into the RECORD an article from the Morning Call newspaper in Pennsylvania, and I will just read the first sentence. April 23, 2004, "The chairman of the Pennsylvania Medical Society acknowledged Thursday to State lawmakers that the doctors group lacks statistical evidence to support its 3-year claim that doctors are leaving the State in large numbers."

The whole article will be introduced.

I have the GAO study that was cited June, 2003; and let me just read a couple of points out of it:

"Multiple factors have contributed to the recent increases in medical malpractice premiums in seven States we analyzed. First, since 1998 insurers' losses on medical malpractice claims have increased rapidly in some States," and they "found that the increased losses appeared to be the greatest contributor to increased premium rates, but a lack of comprehensive data at the national and State levels on insurers' medical malpractice claims and the associated losses prevented us from fully analyzing the composition and causes of those losses.

"Second, from 1998 through 2001, medical malpractice insurers experienced decreases in their investment income as interest rates fell on the bonds that generally make up around 80 percent of these insurers' investment portfolios.

" . . . a decrease in investment income meant that income from insurance premiums had to cover a larger share of insurers' costs. Third, during the 1990s, insurers competed vigorously for medical malpractice business, and several factors, including high investment returns, permitted them to offer prices that in hindsight, for some insurers, did not completely cover their ultimate losses on that business. As a result of this, some companies became insolvent or voluntarily left the market, reducing the downward competitive pressure on premium rates that had existed through the 1990s."

I say that to say that there are a number of factors that have caused the premiums to go up that have nothing to do with the medical malpractice situation or the laws in medical malpractice and that this bill may or may not have anything to do with future premiums.

[From the Morning Call, April 23, 2004]

DOCTORS CAN'T PROVE THINNING RANKS

(By John M.R. Bull)

HARRISBURG.-The chairman of the Pennsylvania Medical Society acknowledged Thursday to state lawmakers that the doctors group lacks statistical evidence to support its three-year claim that doctors are leaving the state in large numbers.

"Some data sources show an 800-doctor gain," internist Daniel Glunk of Williamsport testified before the House Insurance Committee. "The problem is no one has definitive numbers . . . and that there is conflicting data."

That number includes 1,000 medical residents. If those aren't counted, he said, there would be a net loss of 200 doctors out of 35,500 since 2002.

"How can the medical society, if you can't agree on the numbers, continue to tout that doctors are leaving" said Rep. Thomas Tangretti, D-Westmoreland, his voice rising in apparent anger. "You've run ads saying will the last doctor please turn off the X-ray machine."

"You've been frightening people, particularly senior citizens, and now we find it was all probably wrong-headed and disingenuous," Tangretti said, getting louder. "Before you continue to frighten people about access to health care, you better get your numbers right. It's an outrage."

Other lawmakers voiced irritation at his testimony, delivered four days after The Morning Call published new and previously undisclosed figures-some of them from the medical society itself-that make clear doctors are not leaving in large numbers.

For three years, the doctors lobby has insisted that doctors, particularly specialists who perform high-risk procedures, are leaving the state in droves, putting patient care in jeopardy.

Among other tactics, the medical society has promoted a list of 1,700 "disappearing doctors" as proof there are fewer physicians in Pennsylvania.

The Morning Call revealed Sunday that new state Insurance Department numbers show doctors have not left the state in waves. There were 35,474 doctors in 2002, as determined by the number who paid their state-mandated supplemental insurance. Now the figure is at least 34,997.

The newest number includes doctors who have applied to the Insurance Department for a piece of $230 million in state tax dollars recently appropriated to offset their rising malpractice premiums, along with a separate list of doctors who had primary insurance coverage at the end of last year but who haven't yet applied for state money.

That total doesn't include doctors who might have moved to Pennsylvania in the last year, might not be in Insurance Department records yet, and who might not know the state has money set aside for them.

In one of several criticisms of The Morning Call's work, the medical society has contended it might be misleading to compare 2002 figures to a list of individual doctors who recently applied for state money and others known to have malpractice insurance at the end of last year. But society officials have not publicly explained why that could be the case.

The new Insurance Department figures show no appreciable reduction in the number of high-risk specialists, a maximum reduction of 56 out of 4,700 since 2002. The medical society has admitted it has separate statistics that show a reduction of only 16 specialists-defined as neurosurgeons, general surgeons, orthopedic surgeons and ob-gyns-during that time frame.

"This a matter of credibility," Rep. Nick Micozzie, R-Delaware, chairman of the House Insurance Committee, said after the hearing. "We've been hearing for three years now that doctors are leaving in large numbers and there is a shortage."

"I go into my doctor's office and there's a sign that says "Call Nick Micozzie to Save Our Doctors," he said. "Well, saving our doctors is a different issue than claiming doctors are leaving in large numbers."

In reference to the three-year campaign, Glunk told the committee that anecdotal evidence indicates there aren't enough of some kind of specialists in some parts of the state, and that not enough young doctors are choosing to move to Pennsylvania.

For three years, the medical society and its associated group, Politically Active Physicians Association, have waged an intensive public relations and lobbying campaign to convince legislators and their constituents that doctors are fleeing the state en masse.

The effort was triggered by medical malpractice premiums that started soaring in 2001 and continue to climb. Rather than pay prices that doubled seemingly overnight, some doctors did indeed depart, others altered their practices to avoid high-risk procedures.

As a result, lawmakers have enacted a series of court reforms sought by doctors as a way to drive down the rising premiums. A new cigarette tax raises roughly $230 million a year to help doctors afford malpractice premiums. Applications for that money are being processed now.

Doctors continue to demand a cap on jury awards on pain and suffering damages in malpractice lawsuits and have threatened to leave the state if they don't get them.

On Thursday, Glunk told the panel of lawmakers that the disappearing doctors list is not actually a list of doctors who disappeared. It is more of a list of doctors who might have been impacted by rising malpractice rates and who might have retired, moved, or curtailed their practices as a result, he explained.

The list makes no mention of doctors who have relocated to Pennsylvania since 2002, lawmakers noted.

"Naturally people leave their profession. You don't count doctors coming in," said Rep. Tony DeLuca, D-Pittsburgh told Glunk. "If you don't have accurate statistics on the number of doctors, how can we tell? How can we make policy like that?"

Lawmakers from both parties say the list-created and maintained by Donna Rovito, the wife of an Allentown physician-has been used extensively as a lobbying tool to support doctor claims.

Democratic House leaders Thursday called for a moratorium on any more medical malpractice reforms until lawmakers ascertain whether doctors are leaving the sate in large numbers, and whether the medical society deliberately misled lawmakers.

"The data they repeatedly cite, and which served as the basis for legislative action in the last two years, appears to be seriously inaccurate and part of a deceptive campaign," said Rep. Mike Veon, D-Beaver, the House Minority Whip. "We want the real numbers and there should be no further action until the deficiencies of the data are corrected and we know the truth."

Mr. Speaker, I reserve the balance of my time.

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Mr. SCOTT of Virginia. Mr. Speaker, I yield myself 30 seconds.

During the debate, we have talked about how much debate is going on. I just point out that this debate is on a closed rule so that we cannot offer amendments to the bill. We have to take it or leave it. There are a lot of improvements that could be made if we have a full and open debate. That is not happening today because the majority passed a closed rule prohibiting any amendments to the bill.

Mr. Speaker, I reserve the balance of my time.