Energy and Water Development and Related Agencies Appropriations Act, 2010

Floor Speech

ENERGY AND WATER DEVELOPMENT AND RELATED AGENCIES APPROPRIATIONS ACT, 2010 -- (Senate - July 29, 2009)

TORT REFORM

Mr. CORNYN. I know a number of our colleagues have come to the floor and talked about health care reform. I think this is not only an important debate, I think the American people deserve our best work and certainly our closest attention to something that will impact not just some of us but literally all 300 million of us living here in the United States.

I want to focus my remarks on the next few minutes on what is missing, what is missing from the bills moving in the Senate and the House of Representatives. Millions of Americans are paying attention to what is in these bills. That is a good thing. Everybody wants to see what Congress is up to and everybody wants to understand what is in these bills and how it will impact their health care.

As I talk to my constituents in Texas, they tell me that Congress may well make the problem worse, and for good reason. Families are worried that Congress will increase the cost of their health care or force them into a government plan, a pathway to a single-payer system.

Small business owners are concerned that higher taxes and new mandates will make it harder for them to weather the current recession. Physicians and other health care providers are worried that we will not fix the problem with Medicare and Medicaid, and will make their hassles even worse by creating new government programs on top of flawed and unsustainable current government programs.

Patients--that would be all of us--are worried about the quality of care and whether the government will ultimately deny treatment or delay treatment as in Canada and the United Kingdom and other places where the government has taken over health care. And everybody is, frankly, worried about spending more taxpayer dollars, especially after the spending spree we saw earlier this year with the flawed stimulus package which spent more than $1 trillion, including interest, of borrowed money, and which has failed so far to meet its intended goal of keeping unemployment down to 8 percent or less.

I believe the people of this country will have greater confidence in Congress if we focus on reforms that will actually lower the cost of health care and not reduce access or quality, and that will actually increase access and quality.

One proven way of doing that is not even on the table. I think the American people would be justified in asking: Why? Why is that not on the table? Why are we not talking about eliminating junk lawsuits that create the practice of defensive medicine and which do nothing but exacerbate and worsen high health care costs in this country?

Medical liability laws exist for a very good reason, to compensate victims of negligence and other medical errors. Every victim of medical malpractice deserves access to the courts and for their case to be heard. But over the years our laws have somehow encouraged a wave of frivolous litigation which has done little but enrich trial lawyers and encourage the practice of defensive medicine and increase the cost of health care for all of us. It is estimated that defensive medicine costs the American taxpayer more than $100 billion every year, $100 billion of additional cost. That is according to economists Daniel P. Kessler and Mark B. McClellan.

Yet despite this potential savings of $100 billion, trial lawyers have not been asked to make the same sacrifices as others have to lower health care costs.

We know there is a lot of arm twisting going on here in Washington these days. Hospitals, drug makers, insurers, and others have all been asked to pitch in, make a commitment to help. But so far there is one contingent that has not been asked for one dime. That is the trial lawyers. They have not been asked to step up and take one for the team.

Medical liability reform can lower costs while expanding access to care. I would respectfully suggest to my colleagues that they look to the experiment we have recently conducted in the State of Texas. It is a successful experiment to increase access and lower costs. Texas illustrates both the problem and the solution. In the early part of the decade, Texas was a trial lawyer's dream and a doctor's nightmare. Our State had become a haven for medical malpractice lawsuits. As a result, physicians' medical malpractice premiums had doubled and many insurers simply gave up and left the State and would no longer write medical malpractice insurance coverage at all. In fact, the number of physician liability insurers writing policies in Texas fell from about 17 to 4. Many doctors left the State or restricted the procedures they were willing to perform or simply retired early. This reduced access to health care as well as quality for millions of people across the State of Texas.

Our legislature and our Governor at the time saw the problem, and in a series of legislative reforms culminating in 2003, they took action. They placed a $750,000 cap on noneconomic damages in medical malpractice cases. They required the punitive damages; that is, damages that are awarded for punishment, not as compensation, be approved by juries unanimously. They imposed a firmer statute of limitations saying you needed to bring your claim within a specified time rather than sit on your rights and allow this claim to be stale and witnesses' memories dim. They set a higher standard for expert witnesses, the so-called out-of-town folks with a briefcase who are willing to testify for or against a particular claim depending on their compensation.

These and other reforms were designed to create an honest and predictable civil justice system, in which victims would receive just and timely compensation; bad actors would be held to account; and the good doctors could afford to practice in our State.

As I indicated, the results of this experiment have been dramatic. Average premiums for medical malpractice fell by 27 percent on average, 27 percent lower premiums, and in some cases by more than 50 percent.

Patients saw lower premiums for health care because doctors no longer had to pay skyrocketing premiums for their medical liability insurance. That translated into lower premiums for patients for their health care.

More than 400,000 Texans are now covered by health insurance because premiums have become more affordable. That is 400,000 more since these reforms took place.

Another amazing phenomenon here is that physicians literally flocked to our
State. They literally returned to the Lone Star State in large numbers. We saw the overall growth rate of 31 percent in the number of new physicians moving to our State, including underserved areas such as El Paso, TX, where a 76-percent increase in that underserved area was seen as a result of this reform.

We also saw a number of key medical specialists who had simply fled critical parts of our State--such as obstetricians, neurosurgeons, orthopedic surgeons--return to practice and provide access to good quality health care.

Some Texans who had never had access to prenatal care or emergency care available in their county now have greater access, which means shorter drive times and wait times and healthier babies and happier families.

The results in Texas, I would submit, have simply been remarkable. But what a great laboratory for us to learn from in enacting commonsense medical liability reform as part of our overall health care debate. But, of course, Texas is not unique in this experience. Other States have reformed their laws as well to similar effect, including California, Colorado, Florida, Indiana, Montana, and Virginia. They have seen lower costs and greater access to health care. What works in the State can also work here in Washington, DC and around the whole country generally if we were simply to have the courage to embrace it. We must include medical liability reform in eliminating junk lawsuits and frivolous litigation as part of any comprehensive health care reform bill.

Specifically, we should enact standards that cap noneconomic damages, establish firmer statutes of limitations so that claims will be brought on a timely basis and not after memories fail and evidence is lost. We should implement several other reforms that have proved to be so successful both in Texas and around our States. These reforms will lower the cost of health care for all Americans.

But do not take my word for it. Ask the Congressional Budget Office. The nonpartisan Congressional Budget Office has been under tremendous political pressure these days, including an unprecedented invitation by the President of the United States for the current Director to come over to the White House and explain why they have come back with such eye-popping, sticker-shock numbers as they have with some of the proposals that have been made.

But the Congressional Budget Office took a look at the potential cost savings if Washington adopted national reform along the lines of what we have done in Texas. They estimated that the Federal Government alone would directly save $5.6 billion from these types of reforms and that total health care spending could be reduced further if these reforms reduced the practice of defensive medicine.

CBO also concluded that such reforms would likely increase access to health care as we have seen in Texas, where doctors, instead of retiring, decide to continue to practice where they will feel less like hunted prey and more like the health care provider they always have wanted to be, and provide healing and comfort and care to people without access to care right now.

Medical liability reform cannot solve all of the problems in our health care system, but no health care reform bill will ever be comprehensive without it. I would ask my colleagues why it is that every other idea under the Sun seems to have made its way into the health care reform bills we have been debating except for one of the most obvious, which is medical liability reform.

Even President Obama acknowledged that huge liability judgments lead doctors to practice defensive medicine, which drives up the cost of health care for all of us.

Now is the time for Congress to reach the same conclusion and to take steps that have proven so successful in a number of States. If we reform medical liability laws nationwide, eliminating junk lawsuits and frivolous litigation, we will lower the cost of health care, we will expand access to health care, and we will show the American people that we are listening to them and focusing on solutions that will work.

I yield the floor.

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